DR. CHIRANJI LAL (D) BY LRS.
v.
HARI DAS (D) BY LRS.
MAY 13, 2005
[R.C. LAHOTI, CJ., Y.K. SABHARWAL AND G.P. MATHUR, JJ.]
Limitation Act, 1963-Artic/e 136-Decree passed in a partition suitPeriod of limitation for execution of such decree commences from the date of
A
B
the decree and not from the date of engrossment of the decree on the stamp · C
paper-Engrossment of the decree on stamp paper would relate back to the
date of the decree-Indian Stamp Act, I 899--Section 35.
In a suit for partition filed against the predecessor-in-interest of the
appellants, final decree. was passed on 7th August, 1981 in favour of the
predecessor-in-interest of the respondents. There was no order of the Court D
directing the parties to furnish stamp papers for the purposes of engrossing
the decree. The stamp papers required for engrossing the decree were
furnished by respondents on 25th May, 1982 and the decree was engrossed
thereafte~. The execution application was filed on 21st March, 1994 in the
High Court. The appellant raised objection that the execution application E was barred by limitation in view of Article 136 of the Act, but the execution
court rejected the objection. That order was upheld by the Division Bench
in appeal, which held that unless and until the decree is engrossed on the
stamp paper it is merely a judgment of the Court and there is no decree
available for execution and therefore, the starting point of limitation in
case of execution of a decre~ in partition suit is the date when the decree F
is engrossed on the requisite stamp papers as that would be the date when
decree becomes enforceable. Hence the present appeal.
Allowing the appeal, the Court
HELD: I.I. The In~ian Stamp Act, 1899 is a fiscal measure enacted G
with. an object to secure revenue for the State on certain classes of
instruments. Since a decree in a suit for partition creates rights ~nd
liabilities of the parties with respect to the immovable properties, it is
, considered as an instrument liable for the payment of stamp duty under
the Indian Stamp Act.·
~59 H
360 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.
1.2. The Indian Stamp Act is not enacted to arm a litigant with a
weapon of technicality to meet the case of his opponent. The stringent
provisions of the Act are conceived in the interest of the revenue. Once
that object is secured according to law, the party staking his claim on the
instrument will not be defeated on the ground of initial defect in the
B instrument. [368-E-FJ
c
·n
Hameed Joharan and Ors. v. Abdul Salam and Ors., [2001) 7 SCC 573;
Renu Devi v. Mahendra Singh and Ors., AIR (2003) SC 1608 and Hindustan
Steel Limitedv. Messrs Dilip Construction Company, [1969) 1SCC597, relied
on.
Shankar Ba/want Lokhande v. Chandrakant Shankar Lokhande and Anr.,
[1995] 3 SCC 413 and WB. Essential Commodities Supply Corporation v.
Swadesh Agro Farming & Storage Pvt. Ltd. and Anr., [1999] 8 SCC 315,
referred to.
2. The engrossment of the final decree in a suit for partition would
relate back to the date of the decree. The beginning of the period of
limitation for executing such a decree cannot be made to depend upon date
of the engrossment of such a decree on the stamp paper. The date of
furnishing of stamp paper is an uncertain act, within the domain,,.purview
E and control of a party. No date or period is fixed for furnishing stamp
papers. No rule has been shown requiring the court to call upon or give
any time for furnishing of stamp paper. A party by his own act of not
furnishing stamp paper cannot stop the running of period of limitation.
None can take advantage of his own wrong. Ttie' proposition that period
of limitation would remain suspended till stamp paper is furnished and
F · decree engrossed thereupon and only thereafter the period of twelve years
will b'egin to run would lead to absurdity. [369-E, GJ
Yeshwant Deorao Deshmukh v. Walchand Ramchand Kothari, [1950)
SCR 852, relied on.
G 3. Rules of limitation are meant to see that parties do not resort to
dilatory tactics, but seek their remedy promptly. There is no statutory
provision prescribing a time Jim it for furnishing of the stamp paper for
engrossing the decree or time limit for engrossment of the decree on stamp
paper and there is no statutory obligation on the Court passing the decree
H to direct the parties to furnish the stamp paper for engrossing the decree.
~
(
-----'· _,..
CHIRANJILAL(D)BYLRS. v.HARIDAS(D)BYLRS.[SABHARWAL, J.] 36]
In the present case the Court has not passed an order directing the parties A
to furnish the stamp papers for the purpose of engrossing the decree.
Merely because there is no direction by the Court to furnish the stamp
papers for engrossing of the decree or there is no time limit fixed by law,
does not mean that the party can furnish stamp papers at its sweet will
and claim that the period of limitation provided under Article 136 of the B
Act would start only thereafter as and when the decree is engrossed
thereupon. The starting of period of limitation for execution of a decree
cannot be made contingent upon the engrossment of the decree on stamp
paper. The engrossment of the decree on stamp paper would relate back
to the date of the decree, namely, 7th August, 1981, il1 the present case.
In this view, the execution application filed on 21st March, 1994 was time C
barred having been filed beyond the period of twelve years prescribed
under Article 136 of the Act. The High Court committed illegality in
coming to the conclusion that it was not barred by limitation. [370-B-EJ
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3745 of2002. D
From the Judgment and Order dated 23.11.2000 of the Delhi High
Court in Execution First Appeal (O.S.) No. l of 2000.
K.N. Bhat, R.N. Verma, M.K.Verma and R.S. Rana with him for the
Appellant.
Jaspal Singh, Ms. Jayashree Wad, Ashish Wad, Neeraj Kumar and Ms.
Surabhi Madan with him for the Respondent.
The Judgment of the Court was delivered by
E
Y. K. SABHARW AL, J. Article 136 of the Limitation Act, 1963 (for F
short 'the Act') prescribes a period of twelve years for the execution of any
decree (other than a decree granting a mandatory injunction) or order of any
civil court. It provides that the period would commence when the decree or
order becomes enforceable.
The question that arises for determination in this matter is when would
the period of limitation for execution of a decree passed in a suit for partition
commence. In other words, question is when such a decree becomes
enforceable - from the date when the decree is made or when the decree is
engrossed on the stamp paper. Which, out of these two, would be the starting
G
point of limitation? H
A
362 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
The facts are brief and undisputed. In a suit for partition filed against
the predecessor-in-interest of the appellants, final decree was passed on 7th
August, 1981 in favour of the predecessor-in-interest of the respondents. The
stamp papers required for engrossing the decree were furnished by respondents
on 25th May, 1982 and the decree was engrossed thereafter. There was no
B order of the Court directing the parties to furnish stamp papers for the purposes
of engrossing the decree. The execution application was filed on 21st March,
1994 in the High Court. The appellant raised objection that the execution
application was barred by limitation in view of Article 136 of the Act. The
execution court rejected the objection. The order was also upheld by the
Division Bench in the appeal. The Division Bench by the impugned judgment
C held that unless and until the decree is engrossed on the stamp paper it is
merely a judgment of the Court and there is no decree available for execution.
Therefore, it held that the starting point of limitation in case of execution of
a decree in partition suit is the date when the decree is engrossed on the
requisite stamp papers as that would be the date when decree becomes
D enforcea:6le.
A two-Judge Bench of this Court found that there was obvious conflict
among the three two-Judge Bench decisions i.e. (i) Shankar Ba/want Lokhande
v.Chandrakant Shankar Lokhande and Anr., [1995] 3 SCC 413 (ii)
W.B.Essential Commodities Supply Corporation v. Swadesh Agro Farming &
E Storage Pvt. Ltd. and Anr., [1999] 8 SCC 315 and (iii) Hameed Joharan and
Ors. v. Abdul Salam and Ors., [200 I] 7 SCC 573 and was of the view that
it would be appropriate that the case be placed before a three-Judge Bench
to resolve the conflict in these decisions.
The contention urged on behalf of the appellants is that the date of
F engrossment of decree on stamp paper cannot be the starting point oflimitation
for the purposes of Article 136 of the Act.
Learned counsel for the appellants contends that there is no conflict in
the decisions. The submission is that the case of W.B. Essential Commodities
G Supply Corporation was that of a money decree and, therefore, any discussion
therein on the issue of enforcement of decree on stamp paper and starting
point of limitation on that basis would be merely obiter dicta. Likewise, the
point in issue, in fact, did arise in Lokhande 's case and only passing
observations have been made therein which are purely obiter. The said
observations were not necessary to decide the issue which was germane to
H the matter. Placing strong reliance on the decision in Hameed Joharan 's case
Cl-IIRANJI LAL (D) BY LRS. v.1-IARI DAS (D) BY LRS. [SABHARWAL, J.] 3 63
(supra), it is contended by learned counsel that the legal propositions correctly A
laid down therein squarely cover the issue arising in the present matter.
On the other hand, the learned counsel appearing' for the respondents
supporting the impugned judgment strongly relies on th.e decisions inLokhande
and W.B. Essential Commodities Supply Corporation cases in support of the
contention that a final decree of partition becomes enforceable only when it B
is engrossed on the stamp paper.
In Lokhande 's case, a preliminary decree was passed on 2nd August,
1955 in a suit for partition declaring the share of each of the parties to the
suit. The Court by its order dated 19th April 1958 directed preparation of C
final decree on the supply of the stamp papers. On 19th December, 1960 one
among the several parties to the suit whose shares had been declared in the
preliminary decree, supplied the stamp paper for engrossing the final decree
to the extent of his share declared in the preliminary decree and accordingly
on 11th January, 1961 a final decree was engrossed on the stamp paper to the
exte_nt of his share. Other parties to the suit whose shares were declared in D
the preliminary decree did not supply the stamp papers, hence no final decree
was made qua them. However, they filed application for execution of the
preliminary decree, which was dismissed as barred by limitation. The High
Court while dismissing the appeal held that in view of the fact that no final
decree was drawn on stamp paper there was no decree in existence for its E
execution. In this background it was found that no executable final decree
has been drawn working out the rights of the parties dividing the properties
in terms of the shares declared in the preliminary decree. Since the final
decree had not been drawn, the observatiOns regarding furnishing of stamp
paper and engrossment of the final decree thereupon were not germane to the
issue involyed in the said ca:;e. Thus, the-said observations are clearly obiter F
dicta.
Therefore, Lokhande 's case cannot be said to have laid down the
proposition that the period of limitation would commence only on engrossment
of final decree of partition on stamp paper. G
In W.B. Essential Commodities Supply Corporation's case, the High
Court decreed the suit filed for recovery of money on 8th March, 1982.
However, the decree was actually drawn up and signed by the judge on 9th
August, 1983. Application for execution of decree was filed by the decree
holder on 5th June, 1995. The executing court ordered execution of the H
decree. But, on appeal, the Division Bench of the High Court set aside the
364 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A order and held that the execution petition was barred by limitation under
Article 136 of the Act. The question before this Court was whether the period
of limitation begins to run from the date the suit is decreed or from the date
when the decree is actually drawn up and signed by the judge.
The Court held that a decree is said to be enforceable when it is
B executable. For a decree to be executable, it must be in existence. A decree
would be deemed to come into existence immediately on the pronouncement
of the judgment and the decree becomes enforceable the moment thejudgment
is delivered and merely because there will be delay in drawing up of the
decree, it cannot be said that the decree is not enforceable till it is prepared
C because an enforceable decree in one form or the other is available to a
decree holder from the date of the judgment till the expiry of the period of
limitation under Article 136 of the Act.
In arriving at the abovenoted conclusion, the Court placed reliance on
Order 20 Rule 6A of Civil Procedure Code which provided that the last
D paragraph of the judgment should state in precise terms the relief which has .i
been granted by such judgment. It fixed the outer time limit of 15 days from
the date of the pronouncement of the judgment within which the decree must
be drawn up. In the event of the decree not so drawn up, clause (a) of subrule (2) of Rule 6-A enabled a party to make an appeal under Rule 1 of Order
E 41 CPC without filing a copy of the decree appealed against and for that
purpose the last paragraph of the juqgment shall be treated as a decree. For
the purpose of execution also, provision is made in clause (b) of the said subrule which says that so long as the decree is not drawn up, the last paragraph
of the judgment shall be deemed to be a decree. Clause {b) has thus enabled
the party interested in executing the decree before it is drawn up to apply for
F a copy of the last paragraph only, without being required to apply for a copy
of the whole of the judgment.
After holding that decree becomes enforceable the moment the judgment
is delivered, which ultimately decided the question that arose for consideration
G in the case, the Court went further and observed that there may, however, be
situations in which a decree may not be enforceable on the date it is passed.
The Court gave three situations by way of illustrations to demonstrate when
a decree may not be enforceable on the date it is passed. The third illustration
is more pertinent to the present discussion, which is as follows:
H "Thirdly, in a suit for partition of immovable properties after passing
CHIRANJI LAL (D) BY LRS. v. HARi DAS (D) BY LRS. [SABHARW AL, J.] 3 65
of preliminary decree when, in final decree proceedings, an order is A
passed by the court declaring the rights of the parties in the suit
properties, it is not executable till final decree is engrossed on nonjudicial stamp p~per supplied by the parties within the time specified
by the court and the same is signed by the Judge and sealed. It is in
this context that the observations of this Gourt in Shan/car Ba/want
Lokhande v. Chandrakant Shan/car Lokhande, [1995] 3 sec 413 B
have to be understood. These observations do not apply to a money
decree and, therefore, the appellant can derive no benefit from them."
This illustration according to the Court was necessitated because of the
observations in Lokhande 's case. Since these observations have already been C
held to be obiter, this illustration is not of much significance in deciding the
present matter and it cannot be said to be exposition of Jaw. In addition to
this, the decree involved in the case was a decree passed in a suit for recovery
of money and not a decree passed in a suit for partition, hence the question
of engrossing of the decree on stamp paper does not arise.
In Hameed Joharan 's case, a preliminary decree for partrtion was passed
on 8th June, 1969 and a final decree was passed on 20th November, 1970.
On 28th February, 1972, the Court issued notice to the parties to furnish
stamp papers and granted time till 17th March, 1972 for the same. The decree
D
· holder did not furnish any stamp paper, hence no decree was finalized. An
execution application was presented on 21st May, 1984. The execution petition E
was dismissed as barred by limitation as the same was filed beyond twelve
years stipulated in Article. 136 of the Act. Subsequently, a revision petition
was filed against the said order and the High Court set aside the order and
directed the executing court to consider the question of limitation afresh. The
executing court after fresh consideration of the matt~r held that the execution F
petition is not barred by limitation. As against this, a revision petition was
filed before the High Court and the Learned Single Judge of the High Court
allowed the revision petition and set aside the order of the executing court.
Consequently, the execution petition also stood dismissed. The question before
the Court was whether the limitation period begins to run from the date when
the decree is made or from the date on which the stamp paper for engrossing G
the decree is to be furnished as per the direction of the court and the decree
is engrossed on such stamp papers.
This Court in its detailed and elaborate judgment held that the direction
given by the Court for furnishing of stamp papers within a specified date by H
366 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A itself will not take the decree out of the purview of Article 136 of the Act
as regards the enforceability of the decree. It was held that furnishing of
stamp paper was an act entirely within the domain and control of the party
required to furnish and any delay in the matter of furnishing of the same
cannot possibly be said to be putting a stop to the period of limitation being
B run. The Court observed "that:-
"Needless to record that engrossment of ·stamped paper would
undoubtedly render the decree executable but that does not mean and
imply, however, that the enforceability of the decree would remain
suspended until furnishing of the stamped paper - this is opposed to
C the fundamental principle on which the statutes of limitation are
founded".
D
E
F
. The Court has further observed that:-
"Be it noted that the legislature cannot be subservient to any personal
whim or caprice. In any event, furnishing of engrossed stamp paper
for the drawing up of the decree cannot but· be ascribed to be a
ministerial act, which cannot possibly put under suspension a
legislative mandate. Since no conditions are attached to the decree
and the same has been passed declaring the shares of the parties
finally, the Court is not required to deal with the matter any further
- what has to be done - has been done. The test thus should be - has
the Court left out something for bei!"lg adjudicated at a later point of
time or is the decree contingent upon the happening of an event - i.e.
to say the Court by its- own order postpon~.s the enforceability of the
order - in the event of there being no postponement by a specific
order of the Court, there being a suspension of the decree being
unenforceable would not arise".
Thus, even if there is direction by the Court, for furnishing of stamp
papers by a particular date for the purposes of engrossing of the decree, the
period of limitation begins to run from the date when the decree is passed
G and not from the date when the decree is engrossed on the stamy papers
supplied by the parties. '
The Court also held that the period of limitation prescribed in Article
136 of the Act cannot be obliterated by an enactment wholly unconnected
therewith, like the Indian Stamp Act. Legislative mandate as sanctioned under
H Article 136 of the Act cannot be kept in abeyance unless the selfsame
•
CHIRANJJ LAL (D) BY LRS. v. HARI DAS (D) BY LRS. [SABHARWAL, J.] 367
legislation makes a provision therefor. The Indian Stamp Act, 1899 has been A·
engrafted in the statute book to consolidate and amend the law relating to
stamps. Its applicability thus stands restricted to the scheme of the Indian
Stamp Act.
As regards the bar under Section 35 of the Indian Stamp Act, it was
held in Hameed Joharan 'a case that the prescribed period shall not be allowed B
to remain suspended until the stamp paper is furnished and the partition
decree is drawn thereon and subsequently signed by the judge. Enforceability
of the decree cannot be the subject-matter of Section 35, neither can the
limitation be said to be under suspension. The Court differentiated between
"executability" ·and "enforceability" of the decree. The phrase 'execution' C
was held to mean the process for enforcing or giving effect to the judgment
of the court and it is completed when the decree holder gets the money or
other thing awarded to him by the judgment. It was held that though the
decree may not be received in evidence or be acted upon but the period of
limitation cannot be said to remain under suspension at the volition and D
mercy of the litigant. The period of limitation starts by reason of the statutory
provisions as prescribed in the statute. Time does not stop running at the
instance of any individual unless, of course, the same has a statutory sanction
being conditional.
The reference order mentions that the decision of a two Judge Bench E
of this Court in Renu Devi v. Mahendra Singh and Ors., AIR (2003) SC 1608
would have some bearing. In that case in a suit for partition a compromise
decree was made on 13th February, 1978 declaring the share of the parties
in the suit property. The final decree was engrossed on the stamp paper on
24th May, 1979. Two parties to the decree gifted the property that fell into F
their share by a gift deed. Title to these gifted properties was challenged in
the title suit. The Trial Court dismissed the suit. On appeal, the First Appellate
Court allowed the appeal. On further appeal, the High Court while allowing
the appeal held that donors acquired their separate title in the joint property
only after the final decree was engrossed on the stamp paper i.e. on 24th
May, 1979 and, therefore, they were legally incompetent to gift their property G
so as to transfer the title to the donees inasmuch as before the decree was
engrossed on the stamp paper they did not have any title in the property . . ,
.·\'<
--· This Court while allowing the appeal against the decision of the High
Court held that the compromise decree dated 13th February, 1978 being a H
368 SUPREME COURT REPORTS [2005] SUPP. l S.C.R.
A decree effecting partition by metes and bounds ought to have been engrossed
on requisite stamp papers. The deficiency stood supplied by the same beir.g
engrossed on stamp papers on 24th May, 1978. The engrossing of the decree
on stamp paper validated the compromise decree dated 13th February, 1978
and it became effective and binding w,ith effect from 13th February, 1978
B itself. Thus, the Court has categorically held that even ifthe decree is engrossed
on the stamp paper on a subsequent date, the decree would be legally effective
from the date when the decree is actually passed.
Learned counsel for the respondents contends that Section 35 of the
Indian Stamp Act, 1899 provides that an instrument not duly stamped cannot
C be 'acted upon'. Therefore, a decree passed in a suit for partition cannot be
acted upon which means it cannot be enforced until engrossed on stamp
paper. It is further contended that Article 136 of the Act presupposes two
conditions for the execution of the decree. Firstly, the judgment has to be
converted into a decree and secondly, the decree should be enforceable. It is
D further submitted that a decree becomes enforceable only when the decree is
engrossed on the stamp paper. Therefore, the period of limitation begins to
run from the date when the decree becomes enforceable i.e. when the decree
is engrossed on the stamp paper.
Such an interpretation i~ not permissible having regard to the object
E and scheme of the Indian Stamp Act, 1899. The Stamp Act is a fiscal measure
enacted with an object to secure revenue for the State on certain classes of
instruments. It is not enacted to arm a litigant with a weapon of technicality
to meet the case of his opponent. The stringent provisions of the Act are
conceived in the interest of the revenue. Once that object is secured according
F to law, the party staking his claim on the instrument will not be defeated on
the ground of initial defect. in the instrument {Hindustan Steel Limited v.
Messrs. Dilip Construction Company, [1969] 1 SCC 597}. Section 2(14) of
the Indian Stamp Act defines an 'instrument' as including every document by
which any right or liability is, or purported to be created, transferred, limited,
extended, extinguished or recorded. Section 2( 15) defines 'instrument of
G partition' as any instrument whereby co-owners of any property divide or
agree to divide such property in severalty, 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 directin,g partition. Section 3 provides a list of
instruments which shall be chargeable with duty of the amount indicated in
H Schedule I of the Indian Stamp Act. Article 45 of Schedule I prescribes the
J
I
)
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'·
CHIRANJI LAL (D) BY LRS. v. HARIDAS (D) BY LRS. [SABHARWAL, J] 3 69
proper stamp duty payable in case of an instrument of partition. Section 33 A
provides for the impounding of the instrument not duly stamped and for
examination of the instrument for ascertaining whether the instrument is duly
stamped or not. Section 35 provides that no instrument chargeable with duty
shall be admitted in evidence for any purpose by any person having by law
or consent of parties, authority to receive evidence, or shall be acted upon, B
registered or authenticated by any such person or by any p~blic officer,
unless such instrument is duly stamped. Section 40 (b) provide~ for payment
of the proper duty, ifthe instrument impou.nded is not duly stamped. Section
42 (I) provides for certifying that proper duty has been paid on the impounded
instrument. Sub-section (2) provides that after such certification the instrument
shall be admissible in evidence, and may be registered, acted upon and C
authenticated as if it had been duly stamped. .
A decree in a suit for partition declares the rights of the parties in the
immovable properties and divides the shares by metes and bounds. Since a
decree in a suit for partition creates rights and liabilities of the parties with
respect to the immovable properties, it is considered as an instrument liable . D
for the payment of stamp duty under the Indian Stamp Act. The object of the
Stamp Act being securing the revenue for the State, the scheme of the Stamp
Act provides that a decree of partition not duly stamped can be impounded
and once the requisite stamp duty along with penalty, if any, is paid the
decree can be acted upon. E
The engrossment of the final decree in a suit for partition would relate
back to the date of the decree. The beginning of the period of limitation for
executing such a decree cannot be made to depend upon date of the
engrossment of such a decree on the stamp paper. The date of furnishing of
stamp paper is an uncertain act, within the domain, purview and control of p
a party. No date or period is fixed for furnishing stamp papers. No rule has
been shown to us requiring the court to call upon or give any time for
furnishing of stamp paper. A party by his own act of not furnishing stamp
paper cannot stop the running of period of limitation. None can take advantage
of his own wrong. The proposition that period of limitation would remain
suspended till stamp paper is furnished and decree engrossed thereupon and G
only thereafter the period of twelve years will begin to run would lead to
absurdity. In YeshwantDeorao Deshmukh v. Walchand Ramchand Kothari,
(1950] SCR 852 it waf said that the .payment of court fee on the amount
found due was entirely in the power of the decree holder and there was
nothing to prevent him from paying it then and there; it was a decree capable H
'
370 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.
A of execution from the very date it was passed.
Rules of limitation are meant to see that parties do not resort to dilatory
tactics, but seek their remedy promptly. As above noted, there is no statutory
provision prescribing a time limit for furnishing of the stamp paper for
engrossing the decree or time limit for engrossment of the decree on stamp
B paper and there is no statutory obligation on the Court passing the decree to
direct the parties to furnish the stamp paper for engrossing the decree. In the
present case the Court has not passed an order directing the parties to furnish
the stamp papers for the purpose of engrossing the decree. Merely because
there is no direction by the Court to furnish the stamp papers for engrossing
C of the decree or there is no time limit fixed by law, does not mean that the
party can furnish stamp papers at its sweet will and claim that the period of
limitation provided under Article 136 of the Act would start only thereafter
as and when the decree is engrossed thereupon. The starting of period of
limitation for execution of a partition decree cannot be made contingent upon
the engrossment of the decree on the stamp paper. The engrossment of the
D decree on stamp paper would relate back to the date of the decree, namely,
7th August, 1981, in the present case. In this view the execution application
filed on 21st March, 1994 was ti[lle barred ~aving been filed beyond the
period of twelve years prescribed under Article 136 of the Act. The High
Court committed illegality in coming to the conclusion that it was not barred
E by. limitation.
In view of the above, the impugned judgment is set aside and the
appeal is allowed. Parties shall bear their own costs.
B.B.B. Appeal allowed.
.. ~
~-
jt
,,
SANJEEV BHATNAGAR A
v.
UNION OF INDIA AND ORS.
MAY 13, 2005
[R.C. LAHOTI, CJ. AND P.K. BALASUBRAMANY AN, J.] B
I
Constitution of India 1950-Artic/e 32-Public Interest LitigationSeeking deletion of word 'Sindh' from the Natiokal Anthem as 'Sindh' no I
longer part of India post partition-Held: NationaltAnthem is song expressing
patriotic feelings and not a chronicle defining te;riiory of nation which has C
adopted the anthem-'Sindh' is not just a geogrJphical region, it refers to
place and to its people spread throughout the country-Further, issue raised
neither constitutional nor there is enforcement of ahy fundamental right-A/so
petition not in public interest-Hence, petition rejected-Article ' 5/A. j ,!
The question which arose for consideration in this writ petition was D
whether the text of National Anthem could be rectified and the word
'Sindh' be deleted therefrom since the geographical region 'Sindh' does
not form part of India post partition. ;
I I
Dismissing the Writ Petition, the Court••. I
HELD: 1.1. A National Anthem is a hymn or song expressing
patriotic sentiments or feelings. It is not a ch1
ronicle which defines the
territory of the nation which has adopted the· anthem. A few things such
E
as - a National Flag, a National Song, a Natio~al Emblem and so on, are
symbolic of our national honour and heritage .. The National Anthem did
not, and do~s not, enlist the states or regional areas which were part of F
India at the point of time when it was written\ nor is it necessary that the
structure of the National Anthem should go o'ii changing as and when the
territories or the internal distribution of geographical regions and
provinces undergoes changes. Recently Uttaranchal, Chhattisgarh and
Jharkhand have been carved out by reorganizing certain states but that G
does not mean that the National Anthem should be enlarged, re-written
or modified to include the names of these new states. (377-C-D, D-E, E-F)
1.2. The National· Anthem is our patriotic salutation to our
motherland, nestling between the Himalyas and the oceans and the seas
371 H
372 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A surrounding her. The mention of a few names therein is symbolic of our
recollection of the glorious heritage of India. 'Sindh' is not just a
geographical region. It refers to the place and to its people. Sindhis are
spread throughout the country and they derive their such name as having
originated and migrated from Sindh. 'Sindh' also refers to the river
'Sindhu 'or 'Indus'. It also refers to a culture, one of the oldest in the world
B and even modern India feels proud of its having inherited the Indus Valley
Civilisation as an inalienable part of its heritage. River Indus (Sindhu) finds
numerous references in the Indian Classical Literature including Rig Veda.
[377-E-F-G)
C 1.3. The National Anthem is the poem written by Rabindranath
Tagore. He himself had said that the five stanzas in which the poem was
written is addressed to c'od. The poem is a reflection of the real India as
a country - a confluence of many religions, rates, communities and
geographical entities. It is a message of unity in diVersity. It is a patriotic
D
E
F
song. It has since the jldecades inspired niany by arousing their patriotic .. '
sentiments when sung).IJ. ~~ythm. It is. the,repres~ntativ~ of the ethos of
the country. Any classic, o·nce.created, becomes immortal and inalienable;
even its creator may not fed:l!ke making any change in it~ A~y t~mperi~g
with the script of the poem would be showing.disrespect to the great poetRabindranath Tagore. [377-G-H; 378-A-B) . ' . . .
I , ' .
. 1.4. The iss~e raised does not amount to raising ar_iy constitutional
issue o,r ca,nvassing a~y"fundarriental.right for, the enforcement of which . ' , ~' • • ~ "Ii',:-- • I ,.f ! ~
the jurisdiction of this Court under Article 32 of the Constitution can be • ~' ,,-· ' .. -;., F .' ' I
invoked. The petition is ·not in public interest but more of the publicity . . - -... .. -· -,, ,. . interest litigation. It is a"petition which should never have been filed. • • • I'.. '· f · '
.~ _.,,.; . . [378-B-C; 380-D-E)
'Indian National AYfthem' by Prab'odhchandrci Sen Vishvi:I Bharti,
Calcutta May 1945, refer~ed fo. · 1 ·
1 ··l :. . ' •. ' i.
2. The Preventipn.{1f Insults to National· Honour Act, 1971 enacted
G by the Parliament makes it an offence for whoever intentionally prevents
the singing'of the Indian, National-Anthem ·or· causes:disturbance to any
assembly engaged in sue~ singing.-Article SlA of the Constitution inserted
by Forty-second Amendrttent, provid~s for it being the fundam~ntal duty,
amongst others, of ever/citizen of India to abide1
by the Constitution and . ~ • • J • ; -
respect its ideals and i1fstitutions, the National Flag and tlie National
H Anthem. The Constitutio~ of India, its ideals and institutions, the National
~
-
'·
SANJEEV BHATNAGAR v. U.O.I. [LAHOTI, CJ.] 3 73
. Flag and the National Anthem have been treated almost on par. From the ·A_
language of clause (a) of Article SIA, it is clear that the National Anthem
is an ideal and an institution for the Indian citizens. [375-F-G-H) ,.
Re: Kera/a Education Bill, (1959] SCR 995, referred to .
. .
CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 16 of2005. B
(Under Article 32 of the Constitution of India.)
P_etitioner-in-person.
Milon K. Banerji, Attorney General for India, A. Sharan, Additional c Solicitor General, M.R. Calla, Ram Jethmalani; Amit Anand Tiwari, Samir
Ali Khan, Amit Kumar, Navin Prakash, Gaurav Aggarwal, Dewashish Bharuka,
Mrs .. Sushma Suri, Ms. Ranjeeta Rohatgi.' Ms. Lata Krishnamurthy, R.L.
Panjwani, Ms. P.R. Mala, Mushtaq Ahmad, Vijay Panjwani, Dr. Natis A.
Siddiqui, R.N. Keshwani and Ms. Priya Hingorani with them for the apP,earing
parties. D
The Judgment of the Court was delivered by
R.C. LAHOTI, CJ. On 24th January 1950, the Constituent Assembly
of India finally met to sign the Constitution. The question of having a National
Anthem for India as a free country and a nation was under consideration. The E
Constituent Assembly had appointed a Committee to make recommendations
about the final selection of a National Anthem.
After deliberations it was considered desirable to leave it with the
President to make a declaration in the Assembly on the question of adopting F a National Anthem for India. In the Constitution Hall, on 24th January 1950,
where the Constituent Assembly of India finally met to sign the Constitution,
President Dr. Rajendra Prasad declared his decision on the matter relating to
National Anthem in his opening statement in the following words:-
"There is one matter which has been pending for discussion, G namely the question of the National Anthem. At one time it was
thought that the matter might be brought up before the House and a
decision taken by the House by way of a resolution. But it has been
felt that, instead of taking a formal decision by means of a resolution,
it was better ifl make a statement with regard to the National Anthem.
H
'J'",.
374
A
SUPREME COURT REPORTS [2005) SUPP. I S.C.R.
Accordingly I make this statement.
The composition consisting of the words and music known as
Jana Gana Mana is the National Anthem of India, subject to such
alterations in the words as the Government may authorise as occasion
arises; and the song Vande Mataram, which has played a historic part ,., B in the struggle for Indian freedom, shall be honoured equally with
Jana Gana Mana and shall have equal status with it. I hope this will
satisfy the Members.''
c
D
E
F
G
-Constituent Assembly Debates, XII.
(24th January, 1950)
After the Constitution had been signed by all the members of the
Assembly, the President; on the request ofShri M. Ananthasayanam Ayyangar
permitted all members of the House to sing Jana Gana Mana in chorus. Then
led by Shrimati Pumima Banerji all of them sang it in chorus for the first
time after its formal adoption as our National Anthem.
The following is the transliteration i.e. the text of the National Anthem
in Hindi: l
"Jana-gana-mana-adhinayaka, jaya he
Bharata-bhagya-vidhata.
PJnjab-Sindh-Gujarat-Maratha
Dravida-Utkala-Banga
Vindhya-Himachala-Yamuna-Ganga
Uchchala-Jaladhi-taranga.
Tova shubha name jage,
; Tova shubha asisa mange,
Gahe lava jaya gatha,
Jana-gana-mangala-dayaka jaya he
. Bharata-bhagya-vidhata.
Jaya he,jaya he,jaya he
Jaya jaya jaya, jaya he!"
H (Source-India 2004, A Reference Annual, published by Publications Division,
SANJEEV BHATNAGAR v. U.0.1. [LAHOTI, CJ.] 375
Ministry of Information and Broadcasting, Government of India, p.22) A
The great poet Rabindranath Tagore had himself rendered the English
translation of his poem which reads as under:-
"Thou art the ruler of the minds of all people, dispenser of India's
~~~- B
Thy name rouses the hearts of Punjab, Sind, Gujarat and Maratha,
Of the Dravida and Orissa and Bengal;
It echoes in the hills of the Vindhyas and Himalayas, mingles in the
music of Jamuna and Ganges and is chanted by the waves of the C
Indian Sea.
They pray for thy blessings and sing thy praise.
The saving of all people waits in thy hand, thou dispenser of India's
destiny. D
Victory, victory, victory to thee."
(Source, India 2004, ibid, p.22)
The song was first sung on December 27, 1911 at the Calcutta session
of the Indian National Congress. Ever since the date of its being adopted by E
the Constituent Assembly of India, the National Anthem has been sung
throughout the length and breadth of India, by every patriot, every citizen
and all people of this country. It has been sung even in places beyond India.
The Prevention oflnsults to National Honour Act, 1971 (Act No. 69 of F
1971) enacted by the Parliament makes it an offence for whoever intentionally
prevents the singing of the Indian National Anthem or causes disturbance to
any assembly engaged in such singing. Article 51 A of the Constitution of
India, inserted by Forty-second Amendment, provides for it being the
fundamental duty, amongst others, of every citizen of India to abide by the
Constitution and respect its ideals and institutions, the National Flag and the G
National Anthem. The Constitution of India, its ideals and institutions, the
National Flag and the National Anthem have been treated almost on par.
From the language of Clause (a) of Article 5 lA, it is clear that the National
-Anthem is an ideal and an institution for the Indian citizens. In Re: Kera/a
Education Bill, (1959] SCR 99~ .• S.R. Das, Chief Justice, quoted a stanza H
from the National Anthem as India sending out its message of goodwill to the
376 SUPREME COURT REPORTS [2005] SUPP. 1 S.C.R.
A world and thus the genius of India finding unity in diversity by assimilating
the best of all creeds and cultures.
The petitioner is an advocate. He has filed this petition, claiming to be
in. public interest, invoking the extradrdinary jurisdiction of this Court under
Article 32 of the Constitution of India seeking a direction to the Union of
B India to rectify the text of National Anthem and delete the word 'Sindh'
therefrom. Earlier too, he had filed a similar petition, registered as W.P.(C)
No.506/2004. When the matter came up for hearing on 20.9.2004, the Court
was not inclined to entertain the petition. However, the petitioner insisted
that the Government of India had the authority to alter the text of National
C Anthem and therefore, a direction by the Court in that regard was called for.
The petition was dismissed though the petitioner was allowed liberty of inviting
the attention of the Central Government to the facts stated in the writ petition
and such other material as may be with the petitioner. The petitioner did
make a representation on 24.9.2004. On 3.12.2004, he once again filed this
writ petition seeking the very same and the only relief as was sought for
D earlier. The Court directed a notice to be issued to the respondent-Union of
India for having its response.
While the Union of India has filed its response opposing the prayer
made by the petitioner, there are a number of applicants seeking intervention
E in the hearing so as to oppose the writ petition. Some of the intervenors are
All India Sindhu Culture Society headed by a former Judge of the High
Court, Rashtriya Sindhu Parishad headed by an Advocate, Sindhi Council of
India A Registere9 Society, International Sindhi Forum; Sindhi Jagriti Sabha,
Delhi Pradesh Sindhi Samaj and a few other similar institutions and
representative bodies. A few individu.als belonging to Sindhi or non-Sindhi
F community have also sought for intervention. In suq~tance, all the.intervenors
have offered their ve~ement opposition to the petition submitting that their
feelings, first as an Indian and then as members of Sindhi community who
love Sindhi as a language and also as a culture, ha~e been hurt by the move
of the petitioner. They have sought for the petition being dismissed.
G The stand taken by the Union of India is that the National Anthem is
a highly emotive issue; any alteration/substitution in the National Arith.em
will distort the National Anthem and may give rise to several unnecessary
controversies, while no· fruitful object will be served. The National Anthem
is not open to mutilation. The song is a literary creation which cannot be
H changed. The National Anthem reflects our culture spread throughout the
SANJEEV BHATNAGAR v. U.0.1. [LAHOTI, CJ.] 377
length and breadth of India whether it is North, South, East or West. A
Having heard the petitioner appearing in-person, the learned Attorney
General for the Union of India and the several counsel for intervenors led by
Mr. Ram Jethmalani, Senior Advocate, and a few intervenors appearing inperson, we are satisfied that the petition is wholly devoid of any merit and
is liable to be dismissed. The main plank of the petitioner's case is that the B
geographical region known as 'Sindh', was a part of India pre-partition (i.e.
before 15th August, 194 7) and ever since then it is not a part of India, and
. therefore, the use of the word 'Sindh' in the National Anthem is misplaced
and deserves to be deleted for which an appropriate direction needs to be
issued to the Union of India. In our opinion, the submission is misconceived C
for very many reasons which we proceed to summarize herein below.
A National Anthem is a hymn or song expressing patriotic sentiments
or feelings. It is not a chronicle which defines the territory of the nation
which has adopted the anthem. A few things such as-a National Flag, a
National Song, a National Emblem and so on, are symbolic of our national D
honour and heritage. The National Anthem did not, and does not, enlist the
states or regional areas which were part of India at the point of time when
it was written. Nor is it necessary that the structure of the National Anthem
should go on changing as and when the territories or the internal distribution
of geographical regions and provinces undergoes changes. Very recently
Uttaranchal, Chhattisgarh and Jharkhand have been carved out by reorganizing E
certain states. Does it mean that the National Anthem should be enlarged, rewritten or modified to include the names of these new states? The obvious
answer is - no. The National Anthem is our patriotic salutation to our
motherland, nestling between the Himalyas and the oceans and the seas
surrounding her. The mention of a few names therein is symbolic of our F
recollection of the gloriousheritage oflndia. 'Sindh' is not just a geographical
region. It refers to the p_lace and to its people, Sindhis are spread throughout
the country and they derive their such name as having originated and migrated
from Sindh. 'Sindh' also refers to the river 'Sindhu' or 'Indus'. It also refers
to a culture, one of the oldest in the world and even modern India feels proud
of its having inherited the Indus Valley Civilisation as an inalienable part of G
· its heritage. River Indus (Sindhu) finds numerous references in the Indian
Classical Literature including Rig Veda.
The National Anthem is the poem as it was written by Rabindranath
Tagore. He himself had said that the five stanzas in which the poem was H
378 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A written is addressed to God. The poem is a reflection of the real India as a
country-a confluence of many religions, races, communities and geographical
entities. It is a message of unity in diversity. It is a patriotic song. It has since
the decades inspired many by arousing their patriotic sentiments when sung
in rhythm. It is the representative of the ethos of the country. Any classic,
once created, becomes immortal and inalienable; even its creator may not
B feel like making any change in it. Any tampering with the script of the poem
would be showing disrespect to the great poet-Rabindranath Tagore.
The hue and cry raised by the petitioner in his petition and also during
the hearing at the Bar does not amount to raising any constitutional issue or
C canvassing any fundamental right for the enforcement of which the jurisdiction
of this Court under Article 32 of the Constitution can be invoked. The issue
is puerile. Shri Milon Banerjee, the learned Attorney General for India,
submitted that the Union of India, a democratically elected popular
Government is not in favour of making any alteration in or any tampering
with a finely structured poem or song, which is the National Anthem. Every
D word placed therein is carefully in position in the whole composition. A
suggestion seeking a substitution of words in the National Anthem would be
"a bid to rob Tagore of his greatness". He further submitted that in any
poetry the structure has some purpose other than to clarify the content. Poetry
is more structured than prose. It is the structure which forces the author to
E be more creative; to find ways of saying things which do not disrupt the flow.
The choice of words and the structure often provide a path for the reader to
follow outside the flow of the theme and a good poet achieves interesting
things by playing the flow through the content and off the content. The fabric
of words is the creation of the author. A poem once popular, more so if
adopted as a National Anthem, becomes symbolic of the feelings, ideas and
F images that have come to be associated in our minds with the words used by
the author in structuring the poem and then the meaning of a word or a group
of words reaches far beyond its dictionary definition. The learned Attorney
General invited our attention to the book. "India's National Anthem" by
Prabodhchandra Sen, published by Vishva Bharti, Calcutta in May 1949,
G wherein Mahatma Gandhi, the Father of the Nation, has been quoted as
having said in a prayer discourse on 8th May, 1946 on the occasion of
Rabindranath Tagore's Birth Anniversary about Jana Gana Mana-"lt is not
only a song but is also like a devotional hymn". The National Anthem has
been given a tune. Its singing or playing takes 52 seconds.
H The learned Attorney General read out the following passage from
SANJEEV BHATNAGAR v. U.0.1. [LAHOTI, CJ.) 379
. "India's National Anthem" (ibid) which we feel i_nclined to quote verbatim A
for its value:
"THE MORNING SONG OF INDIA"
In the year 1919, during his tour of South India, Rabindranath
spent five days at the Theosophical College; Madanapalle, at the B
' invitation of Principal James H. Cousins. There-ire ·sang the song
'Janaganamana' at some function. The audience was very much moved
by the tune and at their request he made an English translation of the
song and called it 'The Morning Song of India'. The college
authorities, greatly impressed by the tune and the lofty ideals of the
song, selected it as their prayer song to be sung every morning before C
the day's work commenced. In a letter (23.7.34) Principal Cousins
writes:
Every working morning Janaganamana is sung by hundreds of
young people in our big hall. We want to extend its purifying influence
by sending copies of it to other schools and colleges in India and by
making it known abroad.
Later, in the year 1936, the translation mentioned above was
printed in the Poet's own handwriting in the College Commemoration
Volume and distributed widely, with a note that this 'would become
one of .the world's most precious documents ..... From Madanapalle
Janagana has spread all over India, and is admired in Europe and
America.'
D/
E
In the next year ( 193 7), when a bitter controversy was raging
throughout the whole country over the selection of India's National F
Anthem, Principal Cousins issued a statement to the Press (3.11.37)
in which he stated:
My suggestion is that Dr. Rabindranath's own intensely patriotic,
ideally stimulating, and at the same time world-embracing Morning
Song of India (Janaganamana) should be confirmed officially, as what G
it has for almost twenty years been unofficially, namely, the true
National Anthem of India."
Mr. Ram Jethmalani, the learned senior counsel leading the intervenors,
severely criticized the conduct of the petitioner who has mentioned in th~
writ petition that the continued use of the word 'Sindh' in the National H
380 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A Anthem offends patriotic sentiments of the citizens of India and is offensive
of sovereignty of the neighbouring country. He goes on to allege that the
sentiments of 100 crore Indians can be soothened by correcting and updating
the "National Anthem". The learned senior counsel posed the questionsWhose cause the petitioner is pleadingof the citizens of India or of a
B neighbouring country? Wherefrom does the petitioner gather an impression
and plead that he is espousing the cause of more than one billion people of
India? The learned senior counsel was at pains to point out that ever since
this petition was filed in the Court and notice was dire~ted to be issued the
Indian newspapers have been flooded with editorials and hundreds of 'letters
to the editor' highlighting the sentiments of the people of India, and in
C particular of Sindhis who have felt hurt by the move of the petitioner. There
are several oppositions filed in the Court. There is not even one who may
have spoken in support of the petitioner.
We find merit in the submissions made by the learned Attorney General
for India and Mr. Ram Jethmalani, the learned s~nior cdunsel appearing for
D the intervenors, and agree with the same.
We are satisfied that the petitioner is not entitled to the rdief prayed
for. The petition is wholly devoid of any merit. The petition is not in public
interest. It is a petition which should never have been filed. It is more of the
publicity interest litigation wherein the.petitioner seems to have achieved his
E purpose, To discourage the filing of such. like petitions which result only in
wasting the valuable time of this Court, we directthe petition to be dismissed
with costs quantified at Rs. I 0,000.
N.J. Writ Petition dismissed.
