No, fresh law students cannot directly become judges in India anymore. The Supreme Court of India, in a judgment delivered on May 20, 2025, has reinstated and emphasized a crucial eligibility criterion: a minimum of 3 years of active legal practice as an advocate is now mandatory to apply for entry-level judicial posts (Civil Judge Junior Division / Judicial Magistrate).

No, fresh law students cannot directly become judges in India anymore.

The Supreme Court of India, in a judgment delivered on May 20, 2025, has reinstated and emphasized a crucial eligibility criterion: a minimum of 3 years of active legal practice as an advocate is now mandatory to apply for entry-level judicial posts (Civil Judge Junior Division / Judicial Magistrate).

Here's a breakdown of what this means:

• Before May 20, 2025: Some states in India allowed fresh law graduates (without prior practice experience) to appear for the Judicial Service Examinations (PCS-J) directly after obtaining their LLB degree.

• After May 20, 2025 (and going forward): This is no longer the case. The Supreme Court has ruled that to ensure judicial maturity, practical courtroom exposure, and a better understanding of legal intricacies, a candidate must have at least three years of experience as a practicing advocate.

Key aspects of the Supreme Court's 2025 ruling:

• Mandatory 3 Years Practice: This requirement applies to all candidates aspiring for entry-level judicial positions.

• Law Clerkship Counts: Significantly, the Supreme Court clarified that experience as a law clerk to a judge will also count towards this three-year practice requirement. This provides a valuable pathway for fresh graduates to gain relevant experience within the judicial system.

• Prospective Application: The ruling generally applies to recruitment processes notified after May 20, 2025. Ongoing recruitment processes that were notified before this date will proceed under the old rules.

• Certification of Practice: The 3-year practice must be certified by a Principal District Judge (for trial court practitioners) or a Senior Advocate with 10+ years of standing, duly endorsed by a designated officer (for High Court/Supreme Court practitioners).

• Mandatory Training: The Court also reiterated the importance of mandatory one-year training for newly appointed judicial officers before they preside over cases.

Why this change?

The Supreme Court and various High Courts expressed concerns that fresh law graduates, despite strong academic records, lacked the practical understanding of courtroom dynamics, procedural complexities, and the real-world implications of legal decisions. The mandatory practice period aims to equip aspiring judges with this essential practical grounding.

The revised path for a law student to become a judge in India:

1. Complete LLB: (3-year or 5-year integrated course).

2. Enroll with a State Bar Council: Obtain your Certificate of Practice.

3. Gain 3 Years of Legal Practice: This can be through active courtroom advocacy, legal aid, or a judicial clerkship with a judge.

4. Apply for State Judicial Service Exams (PCS-J): After fulfilling the practice requirement, one can apply for the competitive exams conducted by individual states.

5. Clear the Three-Tier Exam: Preliminary, Mains (written), and Viva Voce (interview).

6. Undergo Mandatory Judicial Training: A compulsory one-year training period at a Judicial Academy if selected.

In summary, while the LLB degree is the fundamental educational requirement, the path for "fresh law students" to become judges now includes a crucial interlude of practical legal experience.

2025 INSC 735

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT/ORIGINAL JURISDICTION

I.A. NO.93974 OF 2019

WITH

I.A. NOS. 72900, 73015 AND 40695 OF 2021

WITH

I.A. NOS.50269 AND 201893 OF 2022

IN

WRIT PETITION (C) NO. 1022 OF 1989

ALL INDIA JUDGES ASSOCIATION

AND OTHERS …PETITIONERS

VERSUS

UNION OF INDIA AND OTHERS …RESPONDENTS

INDEX

I. PREFACE ................................................................................3

II. RECORD OF PROCEEDINGS ....................................................6

III. DISCUSSION AND ANALYSIS.................................................9

Issue No.1: As to whether the 10% quota reserved for Limited

Departmental Competitive Examination (for short,

‘LDCE’) for promotion to Higher Judicial Service i.e.

cadre of District Judge, needs to be restored to 25%

as determined by this Court in the case of All India

Judges’ Association and others v. Union of India and

others, reported in (2002) 4 SCC 247?......................9

Digitally signed by

POOJA SHARMA

Date: 2025.05.20

15:34:42 IST

Reason:

Signature Not Verified

2

Issue No.2: As to whether the minimum qualifying experience

for appearing in the aforesaid examination needs to

be reduced, and if so, by how many years?............20

Issue No.3: As to whether a quota needs to be reserved for

meritorious candidate from the Civil Judge (Junior

Division) to Civil Judge (Senior Division) so that there

is an incentive for merit in the cadre of Civil Judge

(Junior Division)? ...................................................29

Issue No.4: If yes, then what should be the percentage thereof

and what should be the minimum experience as a

Civil Judge (Junior Division)?.................................29

Issue No.5: As to whether the quota to be reserved for the

aforementioned departmental examinations in a

particular year should be calculated on the cadre

strength or on the number of vacancies occurring in

the particular recruitment year? ...........................31

Issue No.6: As to whether some suitability test should also be

introduced while promoting the Civil Judge (Senior

Division) to the Cadre of District Judges against the

existing 65% quota for promotion to Higher Judicial

Services on the basis of merit-cum-seniority. .........32

Issue No.7: As to whether the requirement of having minimum

three years practice for appearing in the

examination of Civil Judge (Junior Division), which

was done away by this Court in the case of All India

Judges Association & Ors. (supra), needs to be

restored? And if so, by how many years?...............38

Issue No.8: If the requirement of certain minimum years of

practice for appearing in the examination of Civil

Judge (Junior Division) is restored, should the same

be calculated from the date of the provisional

enrolment/registration or from the date of the

passing of the AIBE?..............................................38

IV. CONCLUSION AND DIRECTIONS .........................................57

3

J U D G M E N T

B.R. GAVAI, CJI

I. PREFACE

1. This batch of applications raises issues pertaining to

the qualification, promotion and selection of candidates who

are desirous of either entering the Judicial Services as Civil

Judge (Junior Division) or Higher Judicial Service, and with

regard to the promotions at different levels within the

Judicial Services.

2. Before we consider the issues in light of the

submissions made on behalf of the various stakeholders, we

first set out below the prayers sought in the various

applications.

I.A. NO.93974 OF 2019

3. This I.A. has been filed seeking the following reliefs:

(i) For clarification/directions whether the quota for

LDCE for induction in the West Bengal Higher

Judicial Service is to be maintained on the cadre

strength of District Judge (Entry Level) or on the

basis of the vacancies arising each year; or

(ii) In the alternative, modify the order dated 20th April 

4

2010 passed in the writ petition by restoring the

share and/or quota for LDCE for introduction in

West Bengal Higher Judicial Service to 25% of the

cadre strength of District Judge (Entry Level) and by

granting liberty to the High Court at Calcutta to fill

up the vacancies for promotion on merit through

LDCE in such manner that 10% of the total

vacancies arising in a particular recruitment year is

earmarked for LDCE or else the object and/or

purpose of carving out such channel might be

frustrated in so far as State of West Bengal is

concerned.

I.A. NOS. 72900 AND 40695 OF 2021 AND I.A. NO.50269

OF 2022

4. These I.As. have been filed seeking directions in respect

of:

(i) Method of regular promotion (Objective Suitability

Test); and

(ii) Enhancement of percentage of quota for accelerated

promotion strictly on the basis of merit through

competitive examination for the post of District

Judges.

5

I.A. NO. 73015 OF 2021

5. This I.A. has been filed seeking the following relief:

(i) For modification of order dated 20th April 2010

passed in I.A. No.77 of 2000 in W.P.(C) No.1022 of

1989 (i.e. to increase and restore the quota to 25%

from 10% for accelerated promotion to the post of

District Judges) and to stay regular promotion

initiated by the Hon’ble Bombay High Court until a

suitability test is conducted in terms of the judgment

dated 21st March 2002 passed by this Court.

I.A. NO. 201893 OF 2022

6. This I.A. has been filed seeking the following reliefs:

(i) Modify orders dated 21st March 2002 and 20th

April 2010 in W.P.(C) No.1022 of 1989 to suitably

amend the LDCE eligibility conditions for all States

and Union Territories, so that the LDCE quota is

fully utilized; and

(ii) Modify the judgment and order dated 20th April

2010 in W.P.(C) No.1022 of 1989, to restore the

LDCE quota to 25% instead of 10%.

6

II. RECORD OF PROCEEDINGS

7. When the aforesaid IAs were listed before this Court on

25th April 2023, we had heard the learned amicus curiae as

well as the learned counsel for the various State

Governments and High Courts and found it necessary to

decide certain larger issues concerning the administration of

justice. We, therefore, framed the following seven issues for

consideration:

(i) As to whether the 10% quota reserved for Limited

Departmental Competitive Examination (for short,

‘LDCE’) for promotion to Higher Judicial Service i.e.

cadre of District Judge, needs to be restored to 25%

as determined by this Court in the case of All India

Judges’ Association and Others v. Union of India

and others, reported in (2002) 4 SCC 247?

(ii) As to whether the minimum qualifying experience for

appearing in the aforesaid examination needs to be

reduced, and if so, by how many years?

(iii) As to whether a quota needs to be reserved for

meritorious candidate from the Civil Judge (Junior

Division) to Civil Judge (Senior Division) so that there 

7

is an incentive for merit in the cadre of Civil Judge

(Junior Division)?

(iv) If yes, then what should be the percentage thereof

and what should be the minimum experience as a

Civil Judge (Junior Division)?

(v) As to whether the quota to be reserved for the

aforementioned departmental examinations in a

particular year should be calculated on the cadre

strength or on the number of vacancies occurring in

the particular recruitment year?

(vi) As to whether some suitability test should also be

introduced while promoting the Civil Judge (Senior

Division) to the Cadre of District Judges against the

existing 65% quota for promotion to Higher Judicial

Services on the basis of merit-cum-seniority.

(vii) As to whether the requirement of having minimum

three years practice for appearing in the examination

of Civil Judge (Junior Division), which was done away

by this Court in the case of All India Judges

Association & Ors. (supra), needs to be restored?

And if so, by how many years?

8

8. On the next date of hearing i.e., 18th May 2023, another

issue (hereinafter referred to as, “Issue No.8”) was flagged by

learned Senior Counsel Shri B.H. Marlapalle for

consideration. The relevant portion of the order reads thus:

“Mr. B.H. Marlapalle, learned Senior Counsel,

submitted that as per the Bar Council of India

Regulations, initially provisional registration is

required to be made for a period of 2 years. He

further submitted that only if a candidate passes

the All-India Bar Examination (AIBE), a permanent

registration can be granted. He further submitted

that while considering the issue as to whether a

minimum number of years of practice should be

made mandatory for permitting a candidate to

appear for the examination of Civil Judge (Junior

Division), it will also be necessary to take into

consideration the aforesaid Regulations of the Bar

Council of India.

We would also request the Union of India, all

the State Governments and the High Courts to

consider the aforesaid issue of Bar Council of India

Regulations, while considering as to whether a

minimum number of years of practice should be

made mandatory before applying for the post of Civil

Judge (Junior Division).”

9. It can thus be seen that Issue No.8 which was sought to

be raised was that: “If the requirement of certain minimum

years of practice for appearing in the examination of Civil

Judge (Junior Division) is restored, should the same be

calculated from the date of the provisional 

9

enrolment/registration or from the date of passing of the AllIndia Bar Examination (AIBE)?”

10. On the said date of hearing i.e., 18th May 2023, this

Court has directed the Union of India, all the State

Governments and all the High Courts to furnish their

responses in form of an affidavit.

11. Accordingly, various State Governments as well as the

High Courts and the other stakeholders have filed their

affidavits. The learned amicus curiae has meticulously

tabulated the information as emerging from the said

affidavits and produced the same along with his

comprehensive note.

12. We have heard Shri Sidharth Bhatnagar, learned

amicus curiae and learned Senior Counsel/counsel appearing

for the various stakeholders on several dates. By way of the

present judgment, we are deciding all the 8 issues.

III. DISCUSSION AND ANALYSIS

Issue No.1: As to whether the 10% quota reserved for

Limited Departmental Competitive

Examination (for short, ‘LDCE’) for

promotion to Higher Judicial Service i.e.,

cadre of District Judge, needs to be

restored to 25% as determined by this

Court in the case of All India Judges’ 

10

Association and others v. Union of India

and others, reported in (2002) 4 SCC 247?

13. For considering the aforesaid issue, we will have to

consider the background for providing the reservation for

LDCE for promotion to Higher Judicial Service.

14. In pursuance to the directions given by this Court in the

judgment in the present proceedings dated 13th November

19911 (hereinafter referred to as “First AIJA Case”), the

Government of India by a resolution dated 21st March 1996

constituted the First National Judicial Pay Commission

under the Chairmanship of Justice K.J. Shetty, Former

Judge of this Court (hereinafter referred to as “Shetty

Commission”). After thorough deliberations, the Shetty

Commission submitted its Report on 11th November 1999.

15. This Court, in the judgment in the present proceedings

dated 21st March 20022 (hereinafter referred to as “Third

AIJA Case”), considered various recommendations of the

Shetty Commission, and the responses made thereto by

various stakeholders. This Court considered the

recommendations made by the Shetty Commission that the

1 (1992) 1 SCC 119 : 1991 INSC 290

2 (2002) 4 SCC 247 : 2002 INSC 165

11

recruitment to the Higher Judicial Service i.e., the District

Judge Cadre from amongst the advocates should be 25% and

appointment on the basis of promotion should be 75%.

16. While considering this recommendation, this Court

observed thus:

“27. Another question which falls for consideration

is the method of recruitment to the posts in the

cadre of Higher Judicial Service i.e. District Judges

and Additional District Judges. At the present

moment, there are two sources for recruitment to

the Higher Judicial Service, namely, by promotion

from amongst the members of the Subordinate

Judicial Service and by direct recruitment. The

subordinate judiciary is the foundation of the edifice

of the judicial system. It is, therefore, imperative,

like any other foundation, that it should become as

strong as possible. The weight on the judicial

system essentially rests on the subordinate

judiciary. While we have accepted the

recommendation of the Shetty Commission which

will result in the increase in the pay scales of the

subordinate judiciary, it is at the same time

necessary that the judicial officers, hard-working as

they are, become more efficient. It is imperative that

they keep abreast of knowledge of law and the latest

pronouncements, and it is for this reason that the

Shetty Commission has recommended the

establishment of a Judicial Academy, which is very

necessary. At the same time, we are of the opinion

that there has to be certain minimum standard,

objectively adjudged, for officers who are to enter

the Higher Judicial Service as Additional District

Judges and District Judges. While we agree with the

Shetty Commission that the recruitment to the

Higher Judicial Service i.e. the District Judge cadre

from amongst the advocates should be 25 per cent

and the process of recruitment is to be by a 

12

competitive examination, both written and viva

voce, we are of the opinion that there should be an

objective method of testing the suitability of the

subordinate judicial officers for promotion to the

Higher Judicial Service. Furthermore, there should

also be an incentive amongst the relatively junior

and other officers to improve and to compete with

each other so as to excel and get quicker promotion.

In this way, we expect that the calibre of the

members of the Higher Judicial Service will further

improve. In order to achieve this, while the ratio of

75 per cent appointment by promotion and 25 per

cent by direct recruitment to the Higher Judicial

Service is maintained, we are, however, of the

opinion that there should be two methods as far as

appointment by promotion is concerned : 50 per

cent of the total posts in the Higher Judicial Service

must be filled by promotion on the basis of principle

of merit-cum-seniority. For this purpose, the High

Courts should devise and evolve a test in order to

ascertain and examine the legal knowledge of those

candidates and to assess their continued efficiency

with adequate knowledge of case-law. The

remaining 25 per cent of the posts in the service

shall be filled by promotion strictly on the basis of

merit through the limited departmental competitive

examination for which the qualifying service as a

Civil Judge (Senior Division) should be not less than

five years. The High Courts will have to frame a rule

in this regard.

28. As a result of the aforesaid, to recapitulate, we

direct that recruitment to the Higher Judicial

Service i.e. the cadre of District Judges will be:

(1)(a) 50 per cent by promotion from

amongst the Civil Judges (Senior

Division) on the basis of principle of

merit-cum-seniority and passing a

suitability test;

(b) 25 per cent by promotion strictly on

the basis of merit through limited

competitive examination of Civil Judges 

13

(Senior Division) having not less than five

years' qualifying service; and

(c) 25 per cent of the posts shall be filled

by direct recruitment from amongst the

eligible advocates on the basis of the

written and viva voce test conducted by

respective High Courts.

(2) Appropriate rules shall be framed as

above by the High Courts as early as

possible.”

17. It can thus be seen that though this Court had

approved the recommendation of the Shetty Commission that

the recruitment to the Higher Judicial Service i.e., the

District Judge Cadre from amongst the advocates should be

25% and appointment by way of promotion should be 75%, it

opined that there should be two methods insofar as

appointment by promotion is concerned. This Court opined

that 50% of the total posts in the Higher Judicial Service

must be filled up by promotion on the basis of principle of

merit-cum-seniority. This Court therefore directed that, for

the said purpose, the High Courts should devise and evolve a

test in order to ascertain and examine the legal knowledge of

those candidates and to assess their continued efficiency

with adequate knowledge of case-law. This Court further

directed that the remaining 25% of the posts in the service 

14

shall be filled up by promotion strictly on the basis of merit

through LDCE. This Court further directed that, for being

entitled to appear in the said LDCE, the qualifying service as

a Civil Judge (Senior Division) should be not less than 5

years. This Court therefore directed the High Courts to frame

the necessary rules so as to implement the aforesaid

directions.

18. In pursuance of the aforesaid directions, the High

Courts had amended the Service Rules and 25% of the posts

of District Judges were reserved for being filled up through

LDCE. However, many of the High Courts found it difficult to

fill up 25% of posts through such a process. In some of the

States, as many as 50 posts of District Judges to be filled up

by such exercise remained vacant and there was no

alternative method provided by which these vacant posts

could be filled up. Though the Rules framed by some of the

High Courts provided that such unfilled posts could be filled

up by regular promotion, in some of the States no such Rules

were framed. Many of the States therefore were of the opinion

that the said 25% reservation needed to be reduced. Though

some of the States like Gujarat, Delhi, Madhya Pradesh, 

15

Jammu & Kashmir and Himachal Pradesh wanted that 25%

reservation for LDCE should be continued but they also

suggested that in case any post has remained unfilled in the

said LDCE quota, they be filled by regular promotion. Some

of the States also faced the difficulty that sufficient number

of candidates were not available for being promoted under

the LDCE category from the Cadre of Civil Judge (Senior

Division). This was so, because in such States even in normal

course, a Civil Judge (Senior Division) could be promoted

through the 50% quota for merit-cum-seniority before the

completion of his/her mandatory 5 years as a Civil Judge

(Senior Division) for the purpose of LDCE. This Court

therefore considered this issue in its judgment in the present

proceedings dated 20th April 20103 (hereinafter referred to as

“Fourth AIJA Case”). This Court found that a large number

of unfilled vacancies in the 25% LDCE category was not good

for judicial administration. Therefore, this Court found that it

was desirable that 25% quota reserved for LDCE be reduced

to 10%. This Court therefore issued the following directions:

“6. Having regard to various strategies available, we

are of the considered view that suitable amendment

3 (2010) 15 SCC 170

16

is to be made for this 25% quota of limited

departmental competitive examination. We are also

of the view, with the past experience, that it is

desirable that 25% quota be reduced to 10%. We

feel so as the required result, which was sought to

be achieved by this process could not be achieved,

thus it calls for modification.

7. Thus, we direct that henceforth only 10% of the

cadre strength of District Judges be filled up by

limited departmental competitive examination with

those candidates who have qualified service of five

years as Civil Judge (Senior Division). Every year

vacancies are to be ascertained and the process of

selection shall be taken care of by the High Courts.

If any of the post is not filled up under 10% quota,

the same shall be filled up by regular promotion. In

some of the High Courts, process of selection of

these 25% quota by holding limited departmental

competitive examination is in progress, such

process can be continued and the unfilled seats, if

meritorious candidates are available, should be

filled up. But if for some reason the seats are not

filled up, they may be filled up by regular promotion

and apply the usual mode of promotion process.

Thus we pass the following order.

8. Hereinafter, there shall be 25% of seats for direct

recruitment from the Bar, 65% of seats are to be

filled up by regular promotion of Civil Judge (Senior

Division) and 10% seats are to be filled up by

limited departmental competitive examination. If

candidates are not available for 10% seats, or are

not able to qualify in the examination then vacant

posts are to be filled up by regular promotion in

accordance with the Service Rules applicable.

9. All the High Courts are hereby directed to take

steps to see that existing Service Rules be amended

positively with effect from 1-1-2011. If the Rules are

not suitably amended, this order shall prevail and

further recruitment from 1-1-2011 shall be

continued accordingly as directed by us. The time

schedule prescribed in the order dated 4-1-2007 

17

(in Malik Mazhar Sultan case [Malik Mazhar Sultan

(3) v. U.P. Public Service Commission, (2008) 17 SCC

703 : (2010) 1 SCC (L&S) 942] ) shall be strictly

adhered to for the purpose of selection. All the

vacancies are to be filled up in that particular year

and there shall not be any carry forward of the

unfilled posts.”

19. Accordingly, in pursuance to the directions issued by

this Court, the Recruitment Rules insofar as the recruitment

in the Cadre of District Judges were amended. The earlier

recruitment ratio of District Judge Cadre i.e., 50:25:25 for

promotion and direct recruitment, was modified to 65:10:25

and the quota for LDCE was reduced.

20. However, since with the passage of time, sufficient

number of candidates in the Cadre of Civil Judge (Senior

Division) were eligible to be promoted as District Judge

through LDCE, certain I.As. were filed before this Court for

restoring the said 10% quota to 25%.

21. In response to the directions issued by this Court vide

order dated 25th April 2023, various High Courts have filed

their responses.

22. From the data compiled by learned amicus curiae, it

would reveal that the High Courts of Chhattisgarh, Patna, 

18

Kerala, Manipur, Madras and Uttarakhand have

recommended that the quota of LDCE be restored to 25%.

However, the High Courts of Gauhati, Andhra Pradesh,

Gujarat, Himachal Pradesh, Madhya Pradesh, Orissa, Punjab

& Haryana, Rajasthan, Sikkim, Tripura, Calcutta, Delhi and

Jammu & Kashmir and Ladakh have recommended to retain

the same position.

23. It is further to be noted that even those High Courts

that have recommended that the LDCE quota to be restored

to 25%, have further recommended that if any seat remains

vacant, the same shall be filled up by regular promotion in

the same year.

24. We find that if the quota of LDCE is restored to 25% as

originally recommended in the Third AIJA Case, which was

reduced to 10% in the Fourth AIJA Case, it will provide an

incentive amongst the officers in the Cadre of Civil Judge

(Senior Division). It will also provide them with an

opportunity to get accelerated promotion in the Cadre of

District Judge if they are meritorious and deserving.

25. Another difficulty that has come to our notice is that

sufficient number of candidates are not available for 

19

appearing in LDCE on account of requirement of having

minimum 5 years’ experience as Civil Judge (Senior Division)

which is prescribed as an eligibility criterion for appearing in

the LDCE for the Higher Judiciary.

26. In some of the States, a Judicial Officer who completes

about 5 years’ service in the Cadre of Civil Judge (Senior

Division), in normal course, becomes entitled to be promoted

in the Cadre of District Judge. We have already framed Issue

No.2 dealing with this very conundrum, which we are

considering immediately after this issue.

27. We find that in view of the answer that we propose for

Issue No.2, sufficient number of Judicial Officers from the

Cadre of Civil Judge (Senior Division) would be available who

would be eligible for appearing in LDCE.

28. If, in a particular year sufficient candidates are not

selected from the LDCE quota, it will be appropriate that

such posts would revert back to the regular promotion quota

based on merit-cum-seniority, to be filled up in the same

year. Therefore, in such a case, we find that no adverse

impact on the administration of justice would occur even if

the LDCE quota is increased to 25%. In our view, this apart 

20

from avoiding any adverse effect on administration of justice

due to sufficient number of seats not being filled up would

also ensure that no prejudice would be caused to the regular

promotees and at the same time, the said exercise would

provide an incentive to the meritorious Judicial Officers, if

their merit deserves the same.

Issue No.2: As to whether the minimum qualifying

experience for appearing in the aforesaid

examination needs to be reduced, and if

so, by how many years?

29. The difficulty of the requirement of having 5 years’

experience as Civil Judge (Senior Division) was noticed by

this Court in its order dated 19th April 2022 passed in the

present proceedings4 (hereinafter referred to as “Fifth AIJA

Case”). No doubt that the said decision of this Court

pertained only to the Delhi Judicial Services. After

considering the rival submissions, a three-Judges Bench of

this Court to which one of us (Gavai, J.) was a Member

observed thus:

“17. The very purpose for providing the channel of

promotion through LDCE was to provide an

incentive to the officers amongst the relatively junior

officers to improve and to compete with each other

so as to excel and get quicker promotion. In the

4 (2022) 7 SCC 494 : 2022 INSC 445

21

peculiar situation prevailing in the High Court of

Delhi, the very purpose is frustrated. We are,

therefore, of the considered view that in the peculiar

facts and circumstances, both IA No. 249 of 2009

and IA No. 89454 of 2021 deserve to be allowed.

18. Shri Rao, learned Senior Counsel appearing on

behalf of the High Court of Delhi has fairly stated

that the High Court of Delhi, on its own, has

reserved two seats for the present judicial officersapplicants so that their claims are not defeated by

passage of time or by delay in holding of the

examination.

19. In view of the submission made by Shri Rao, no

orders are necessary to be passed in IA No. 89450 of

2021, IA No. 44132 of 2022 in IAs Nos. 89450 and

88976 of 2021.

20. In the result, IA No. 89454 of 2021 filed by the

judicial officers-applicants and IA No. 249 of 2009

filed by the High Court of Delhi are allowed in the

following terms:

20.1. Para 28(1)(b) of the order dated 21-3-2002 [All

India Judges Assn. (3) v. Union of India, (2002) 4

SCC 247 : 2002 SCC (L&S) 508] passed by this

Court, is modified and substituted as under:

“25% by promotion strictly on the basis of

merit through LDCE of Civil Judges having

7 years' qualifying service [5 years as Civil

Judge (Junior Division) and 2 years as

Civil Judge (Senior Division)] or 10 years'

qualifying service as Civil Judge (Junior

Division).”

20.2. Similarly, in the order dated 20-4-2010 [All

India Judges Assn. v. Union of India, (2010) 15 SCC

170 : (2013) 1 SCC (L&S) 548] passed by this Court,

the direction in para 7 i.e. “Thus, we direct that

henceforth only 10% of the cadre strength of

District Judges be filled up by Limited Departmental

Competitive Examination with those candidates who

have qualified service of five years as Civil Judge 

22

(Senior Division)”, is modified and substituted as

under:

“Thus, we direct that henceforth only 10%

of the cadre strength of District Judges be

filled up by Limited Departmental

Competitive Examination with those

candidates who have qualified service of 7

years [5 years as Civil Judge (Junior

Division) and 2 years as Civil Judge

(Senior Division)] or 10 years' qualifying

service as Civil Judge (Junior Division).””

30. Though in the said order, this Court considered the

aforesaid requirement of 5 years’ experience, only insofar as

High Court of Delhi is concerned, from the responses we have

received from various High Courts and the State

Governments, we are of the view that the said requirement

requires reconsideration.

31. As can be seen from the affidavits filed, the High Courts

of Gauhati, Chhattisgarh, Himachal Pradesh, Madhya

Pradesh, Orissa, Punjab & Haryana, Rajasthan, Sikkim,

Madras, Tripura, Calcutta and Jammu & Kashmir and

Ladakh have opposed the reduction of experience of 5 years.

The Governments of these States have also adopted the

suggestions made by their High Courts. However, the High 

23

Court of Patna has recommended the qualifying service as a

Civil Judge (Senior Division) should be 3 years.

32. The State of Haryana has observed that the average

time taken by a Civil Judge (Junior Division) to be eligible for

LDCE is 14 years. The State Government has therefore

recommended that the qualifying service as Civil Judge

(Senior Division) may be reduced to 2 or 3 years for being

eligible to appear for LDCE.

33. Insofar as the State of Kerala is concerned, both the

State Government and the High Court of Kerala have

recommended that the minimum requirement of having an

experience of 5 years as Civil Judge (Senior Division) should

be brought down to 3 years.

34. High Court of Uttarakhand has recommended for

reducing the minimum qualifying service of 5 years to 2

years. Further, the High Court of Allahabad has also

recommended for reducing the minimum qualifying service of

5 years to 3 years.

35. Insofar as the States of Chhattisgarh and Manipur are

concerned, it appears that the State Governments and the

High Courts are not on the same pitch. 

24

36. Insofar as the State of Chhattisgarh is concerned, the

State Government has given a positive opinion with regard to

amending the provision for reducing the minimum

requirement of having an experience of 5 years as a Civil

Judge (Senior Division) to 2 years. However, High Court of

Chhattisgarh has opposed for reduction of the minimum

qualifying experience.

37. The situation is converse insofar as State of Manipur is

concerned. In the State of Manipur, though the High Court

has recommended reduction of minimum experience from 5

years to 2 years, it has also recommended that the minimum

years of service as a Judicial Officer including that of a Civil

Judge (Junior Division) should not be less than 7 years.

However, the State of Manipur though has opposed such a

reduction, it has left the final decision to the wisdom of this

Court.

38. Insofar as the State of Gujarat is concerned, it has not

given any opinion. From the affidavit filed by the High Court

of Gujarat, it appears that there exists a completely

anomalous situation. Rule 5(3)(i) of the Gujarat State Judicial

Service Rules, 2005 provides that 2 years of qualifying service 

25

as Civil Judge (Senior Division) is required for being eligible

for promotion in the cadre of District Judge against 65%

quota. However, Rule 5(3)(ii) of the said Rules provides that 5

years of qualifying service as Civil Judge (Senior Division) is

required for being eligible for promotion in the Cadre of

District Judge against 10% quota. In the affidavit of High

Court of Gujarat itself, it is stated that the said position has

been holding the field since the year 2005 and is working out

well. The position that emerges in the State of Gujarat

though is that, for being eligible for a promotional quota in a

regular course, only 2 years’ experience is required. However,

to compete from LDCE, which is supposed to be for the

purpose of providing incentive, a Judicial Officer must have 5

years’ service as Civil Judge (Senior Division). We find that

such a position is totally inconsistent with the idea of

providing an incentive to a meritorious Civil Judge (Senior

Division) to have an opportunity to get an accelerated

promotion to the Cadre of District Judge.

39. We find that it will be appropriate to compare the

position in some of the States with regard to average time

taken by a Civil Judge (Junior Division) to get eligible for 

26

LDCE as against the average time taken by a Civil Judge

(Junior Division) to become a District Judge by regular

promotions. In this respect, a Chart was submitted by the

learned amicus curiae, extracted as under:

i. “Bihar

a) average time taken by a Civil Judge (JD) to be

eligible for LDCE - 9 to 10 years

b) average time taken by a Civil Judge (JD) to

become a District Judge by regular promotions

– 9 to 10 years

ii. Himachal Pradesh

a) average time taken by a Civil Judge (JD) to be

eligible for LDCE - 15 to 16 years

b) average time taken by a Civil Judge (JD) to

become a District Judge by regular promotions

– 19 to 20 years

iii. Maharashtra

a) average time taken by a Civil Judge (JD) to be

eligible for LDCE - 11 years

b) average time taken by a Civil Judge (JD) to

become a District Judge by regular promotions

– 13 years

iv. Manipur

a) average time taken by a Civil Judge (JD) to be

eligible for LDCE - 10 years 7 months

b) average time taken by a Civil Judge (JD) to

become a District Judge by regular promotions

– 11 years

27

v. Punjab

a) average time taken by a Civil Judge (JD) to be

eligible for LDCE - 14 to 15 years

b) average time taken by a Civil Judge (JD) to

become a District Judge by regular promotions

– 15 years

vi. Haryana

a) average time taken by a Civil Judge (JD) to be

eligible for LDCE - 14 years

b) average time taken by a Civil Judge (JD) to

become a District Judge by regular

promotions – 12 years

vii. Uttar Pradesh

a) average time taken by a Civil Judge (JD) to be

eligible for LDCE - 9 to 10 years

b) average time taken by a Civil Judge (JD) to

become a District Judge by regular

promotions – 9 to 10 years”

40. The comparative position would reveal that in most of

the States, the average time taken by a Civil Judge (Junior

Division) to climb the ladder of regular promotion and

ultimately, be promoted as a District Judge is almost the

same as the time it takes to become eligible for a Civil Judge

(Senior Division) to appear for LDCE.

28

41. As such, there will be no actual incentive for a Judicial

Officer to appear for LDCE and such incentive cannot be

frustrated by actual working of the said scheme.

42. As has been discussed hereinabove, the purpose behind

providing a special quota for LDCE is to enable the

meritorious Judicial Officers to get accelerated promotion

and enter the Cadre of District Judge at an earlier point of

time than other less meritorious candidates. If a Judicial

Officer even otherwise gets entry in the Cadre of District

Judge after completion of 5 years of service as a Civil Judge

(Senior Division), there will be no incentive available to

him/her. As already discussed hereinabove, in some of the

High Courts, a Judicial Officer gets into the Cadre of District

Judge through regular promotion itself after he/she

completes 5 years’ service as Civil Judge (Senior Division).

Therefore, in our considered view, it will be desirable to

modify the requirement to become eligible for LDCE for the

Higher Judicial Services and reduce the minimum number of

years of experience as a Civil Judge (Senior Division) from 5

years to 3 years. However, at the same time, we are also of

the opinion that, as recommended by some of the States, the 

29

total number of years of experience for a Judicial Officer for

being eligible for LDCE should be a minimum cumulative of 7

years including service as Civil Judge (Junior Division) and

Civil Judge (Senior Division).

Issue No.3: As to whether a quota needs to be reserved

for meritorious candidate from the Civil

Judge (Junior Division) to Civil Judge

(Senior Division) so that there is an

incentive for merit in the cadre of Civil

Judge (Junior Division)?

AND

Issue No.4: If yes, then what should be the percentage

thereof and what should be the minimum

experience as a Civil Judge (Junior

Division)?

43. The High Courts across the country have given varying

opinions with regard to the aforesaid two issues. Whereas

some of the High Courts have opposed for providing such a

quota for promotion from Civil Judge (Junior Division) to

Civil Judge (Senior Division), on the other hand, some of the

High Courts have recommended the same. There are also

diverse views on minimum number of years to be put in by a

Civil Judge (Junior Division) before they are considered as 

30

eligible for being promoted as Civil Judge (Senior Division)

through LDCE mechanism.

44. In this respect, it will be apposite to refer to the

judgment of this Court in the Third AIJA Case.

45. This Court, while considering the recommendation of

the Shetty Commission for providing 25% quota for Direct

Recruitment from the Bar and 75% quota for promotion on

the basis of the principle of merit-cum-seniority, was of the

view that in the 75% quota, 25% posts are required to be

filled up through LDCE so as to provide an incentive to the

meritorious candidates. We are of the view that there should

be no reason as to why the said principle also cannot be

adopted for promotion of Civil Judge (Junior Division)

candidates to the Cadre of Civil Judge (Senior Division).

46. Therefore, we are of the view that a system wherein 10%

of the posts in the Cadre of Civil Judge (Senior Division)

would be reserved for promotion of Civil Judge (Junior

Division) through the LDCE mechanism needs to be

introduced so as to provide incentive at an earlier promotion

to the meritorious candidates working in the Cadre of Civil

Judge (Junior Division). The said seats would be filled up 

31

through the same mechanism adopted for filling up the

vacancies reserved through LDCE for entry into the Cadre of

District Judge. The minimum experience of a Judicial Officer

in the Cadre of Civil Judge (Junior Division) for appearing in

such an examination should be 3 years.

Issue No.5: As to whether the quota to be reserved for

the aforementioned departmental

examinations in a particular year should

be calculated on the cadre strength or on

the number of vacancies occurring in the

particular recruitment year?

47. Insofar as this issue is concerned, most of the State

Governments except the four States of Haryana, Madhya

Pradesh, Punjab and West Bengal have recommended filling

up of vacant seats as per the total cadre strength and not as

per the vacancies arising in a particular year. The learned

amicus curiae has placed on record a chart depicting the said

position of all the States who had filed their responses.

48. We are of the view that a uniform practice needs to be

followed by all the States in the country. Since most of the

States are already filling up the vacant posts as per the total

cadre strength, keeping uniformity in mind, we are of the 

32

view that the quota to be reserved for LDCE should be

calculated on the basis of the cadre strength.

Issue No.6: As to whether some suitability test should

also be introduced while promoting the

Civil Judge (Senior Division) to the Cadre

of District Judges against the existing 65%

quota for promotion to Higher Judicial

Services on the basis of merit-cumseniority.

49. For considering this issue, it will be relevant to refer to

the following observations made by this Court in the Third

AIJA Case:

“27. Another question which falls for consideration

is the method of recruitment to the posts in the

cadre of Higher Judicial Service i.e. District Judges

and Additional District Judges. At the present

moment, there are two sources for recruitment to

the Higher Judicial Service, namely, by promotion

from amongst the members of the Subordinate

Judicial Service and by direct recruitment. The

subordinate judiciary is the foundation of the edifice

of the judicial system. It is, therefore, imperative,

like any other foundation, that it should become as

strong as possible. The weight on the judicial

system essentially rests on the subordinate

judiciary. While we have accepted the

recommendation of the Shetty Commission which

will result in the increase in the pay scales of the

subordinate judiciary, it is at the same time

necessary that the judicial officers, hard-working as

they are, become more efficient. It is imperative that

they keep abreast of knowledge of law and the latest

pronouncements, and it is for this reason that the

Shetty Commission has recommended the

establishment of a Judicial Academy, which is very

necessary. At the same time, we are of the opinion 

33

that there has to be certain minimum standard,

objectively adjudged, for officers who are to enter

the Higher Judicial Service as Additional District

Judges and District Judges. While we agree with

the Shetty Commission that the recruitment to

the Higher Judicial Service i.e. the District

Judge cadre from amongst the advocates should

be 25 per cent and the process of recruitment is

to be by a competitive examination, both written

and viva voce, we are of the opinion that there

should be an objective method of testing the

suitability of the subordinate judicial officers for

promotion to the Higher Judicial Service.

Furthermore, there should also be an incentive

amongst the relatively junior and other officers to

improve and to compete with each other so as to

excel and get quicker promotion. In this way, we

expect that the calibre of the members of the Higher

Judicial Service will further improve. In order to

achieve this, while the ratio of 75 per cent

appointment by promotion and 25 per cent by direct

recruitment to the Higher Judicial Service is

maintained, we are, however, of the opinion that

there should be two methods as far as appointment

by promotion is concerned : 50 per cent of the

total posts in the Higher Judicial Service must

be filled by promotion on the basis of principle

of merit-cum-seniority. For this purpose, the

High Courts should devise and evolve a test in

order to ascertain and examine the legal

knowledge of those candidates and to assess

their continued efficiency with adequate

knowledge of case-law. The remaining 25 per cent

of the posts in the service shall be filled by

promotion strictly on the basis of merit through the

limited departmental competitive examination for

which the qualifying service as a Civil Judge (Senior

Division) should be not less than five years. The

High Courts will have to frame a rule in this regard.

28. As a result of the aforesaid, to recapitulate, we

direct that recruitment to the Higher Judicial

Service i.e. the cadre of District Judges will be:

34

(1)(a) 50 per cent by promotion from

amongst the Civil Judges (Senior

Division) on the basis of principle of

merit-cum-seniority and passing a

suitability test;

(b) 25 per cent by promotion strictly on

the basis of merit through limited

competitive examination of Civil Judges

(Senior Division) having not less than five

years' qualifying service; and

(c) 25 per cent of the posts shall be filled

by direct recruitment from amongst the

eligible advocates on the basis of the

written and viva voce test conducted by

respective High Courts.

(2) Appropriate rules shall be framed as

above by the High Courts as early as

possible.”

[Emphasis supplied]

50. It can be seen that, in the Third AIJA Case, while this

Court had accepted the recommendations of the Shetty

Commission, which recommended an increase in the PayScales of the subordinate judiciary, this Court also

emphasized the necessity of Judicial Officers becoming more

efficient. This Court observed that it was imperative that they

keep abreast of the developments in law and the latest

judicial pronouncements. This Court further observed that, it

was for that reason, the Shetty Commission had

recommended the establishment of a Judicial Academy. This 

35

Court also expressed that there should be an objective

method for testing the suitability of the Judicial Officers who

are in line for promotion to the Higher Judicial Service. This

Court had observed that 50% of the total posts in the Higher

Judicial Service must be filled by promotion based on the

principle of merit-cum-seniority. It has further been observed

that for the said purpose, the High Courts should devise and

evolve a test in order to ascertain and examine the legal

knowledge of such candidates and to assess their continued

efficiency with adequate knowledge of case-law. This Court

further emphasized the necessity of postulating the basis of

determining the suitability of the candidate while he/she was

being considered to be promoted to the Cadre of Higher

Judicial Service. The said determination was on the basis of

various factors including as to whether such candidate

possesses adequate legal knowledge or not.

51. Perusal of the affidavits filed by various High Courts as

well as State Governments would reveal that in some of the

High Courts, the Rules have been framed for determining the

suitability of a candidate for being promoted to the Cadre of

Higher Judicial Service from the Cadre of Civil Judge (Senior 

36

Division). Perusal of the affidavits of the High Courts and the

States where such suitability is being determined would

reveal that various factors are taken into consideration while

determining the suitability of a candidate like: (i) evaluation

of judgments rendered by the Judicial Officer in the

preceding five years; (ii) Annual Confidential Reports (ACRs)

of the Judicial Officer in the preceding five years; (iii) disposal

rate in the preceding five years; (iv) pendency of the

disciplinary proceedings; and (v) the performance of the

candidate in the viva voce.

52. We are of the view that though every High Court would

be required to frame the Rules for determining the suitability

of a candidate for being promoted to the Cadre of Higher

Judicial Service from the Cadre of Civil Judge (Senior

Division), no straight-jacket formula can be laid down for the

said purpose. We however find that, in such of the States

where the Rules have not been framed for determining the

suitability of a candidate for being promoted to the Cadre of

Higher Judicial Service from the Cadre of Civil Judge (Senior

Division), such of the High Courts and the State

Governments should frame the Rules forthwith. We further 

37

find that the High Courts and the State Governments shall

also examine, as to whether the Rules already existing are

sufficient to determine the suitability of a candidate for being

promoted to the Cadre of Higher Judicial Service from the

Cadre of Civil Judge (Senior Division). We find that while

providing a Rule for determining the suitability of a

candidate, it would be relevant to consider factors referred to

by us in the preceding paragraphs amongst other factors:

(i) Whether the candidate possesses updated knowledge

of law;

(ii) The quality of judgments rendered by the Judicial

Officer;

(iii) ACRs of the Judicial Officer of the preceding five

years;

(iv) Disposal rate in the preceding five years;

(v) Performance of the Judicial Officer in the viva voce;

and

(vi) General perceptions and awareness as also

communication skills.

38

Issue No.7: As to whether the requirement of having

minimum three years practice for

appearing in the examination of Civil

Judge (Junior Division), which was done

away by this Court in the case of All India

Judges Association & Ors. (supra), needs

to be restored? And if so, by how many

years?

AND

Issue No.8: If the requirement of certain minimum

years of practice for appearing in the

examination of Civil Judge (Junior

Division) is restored, should the same be

calculated from the date of the provisional

enrolment/registration or from the date of

the passing of the AIBE?

53. These issues pertain to the question as to whether the

requirement of minimum 3 years’ practice for appearing in

the examination for the post of Civil Judge (Junior Division)

which was done away by this Court in Third AIJA Case

requires to be restored or not. The ancillary question that is

framed by us is as to how many years of experience should

be prescribed for practicing before appearing in the

examination of Civil Judge (Junior Division).

54. While we had called upon the responses of various High

Courts and the State Governments in the country vide order

dated 25th April 2023, when the matter was listed on 18th

May 2023, Shri Marlapalle, learned Senior Counsel 

39

submitted that as per the Bar Council of India Regulations,

initially provisional registration is required to be made for a

period of 2 years. It was further submitted that only if a

candidate passes the AIBE, a permanent registration can be

granted. He, therefore, submitted that for considering the

aforesaid issue No.7, it will also be necessary to take into

consideration the aforesaid Regulations of the Bar Council of

India. We, therefore, vide order dated 18th May 2023

requested the Union of India, all the State Governments and

the High Courts to consider the aforesaid issue with regard

to the Regulations of the Bar Council of India.

55. The Law Commission of India in its 117th Report, dated

28th November 1986 titled - “Training of Judicial Officers”,

though recommended the fresh law graduates to enter into

the judicial service, it emphasized the need for intensive

training for such fresh law graduates entering into the

judicial service. It will be relevant to refer to the following

observations of the Law Commission of India:

“4.6 …….The Law Commission is of the opinion that

the two years intensive training would outweigh the

advantage, if any, of three years practice at the Bar

which often enough hardly helps in the matter of

equipping oneself.”

40

56. The said recommendations were considered by this

Court in the present proceedings in its judgment dated 24th

August 19935 (hereinafter referred to as “Second AIJA

Case”). This Court observed thus:

“20. It has, however, become imperative, in this

connection, to take notice of the fact that the

qualifications prescribed and the procedure adopted

for recruitment of the Judges at the lowest rung are

not uniform in all the States. In view of the

uniformity in the hierarchy and designations as well

as the service conditions that we have suggested, it

is necessary that all the States should prescribe

uniform qualifications and adopt uniform procedure

in recruiting the judicial officers at the lowest rung

in the hierarchy. In most of the States, the

minimum qualifications for being eligible to the post

of the Civil Judge-cum-Magistrate First

Class/Magistrate First Class/Munsiff Magistrate is

minimum three years' practice as a lawyer in

addition to the degree in law. In some States,

however, the requirement of practice is altogether

dispensed with and judicial officers are recruited

with only a degree in law to their credit. The

recruitment of raw graduates as judicial officers

without any training or background of lawyering

has not proved to be a successful experiment.

Considering the fact that from the first day of his

assuming office, the Judge has to decide, among

others, questions of life, liberty, property and

reputation of the litigants, to induct graduates fresh

from the Universities to occupy seats of such vital

powers is neither prudent nor desirable. Neither

knowledge derived from books nor pre-service

training can be an adequate substitute for the firsthand experience of the working of the court-system

and the administration of justice begotten through

5 (1993) 4 SCC 288 : 1993 INSC 272

41

legal practice. The practice involves much more

than mere advocacy. A lawyer has to interact with

several components of the administration of justice.

Unless the judicial officer is familiar with the

working of the said components, his education and

equipment as a Judge is likely to remain

incomplete. The experience as a lawyer is, therefore,

essential to enable the Judge to discharge his duties

and functions efficiently and with confidence and

circumspection. Many States have hence prescribed

a minimum of three years' practice as a lawyer as

an essential qualification for appointment as a

judicial officer at the lowest rung. It is, hence,

necessary that all the States prescribe the said

minimum practice as a lawyer as a necessary

qualification for recruitment to the lowest rung in

the judiciary. In this connection, it may be pointed

out that under Article 233(2) of the Constitution, no

person is eligible to be appointed a District Judge

unless he has been an advocate or a pleader for not

less than seven years while Articles 217(2)(b) and

124(3)(b) require at least ten years' practice as an

advocate of a High Court for the appointment of a

person to the posts of the Judge of the High Court

and the Judge of the Supreme Court, respectively.

We, therefore, direct that all States shall take

immediate steps to prescribe three years' practice as

a lawyer as one of the essential qualifications for

recruitment as the judicial officer at the lowest

rung.”

57. It can thus be seen that this Court noted that though

there is no uniformity in all the States with regard to

minimum qualifications for being eligible to the post of Civil

Judge-cum-Magistrate First Class/Magistrate First

Class/Munsiff Magistrate, most of the States provided

minimum three years' practice as a lawyer in addition to the 

42

degree in law. This Court noted that in some of the States,

the requirement of practice was altogether dispensed with,

and judicial officers were recruited with only a degree in law

to their credit. This Court observed that the recruitment of

“raw graduates” as Judicial Officers without any training or

background of lawyering has not proved to be a successful

experiment. This Court further noted that from the first day

of his/her assuming office, a Judge has to decide, among

others, questions of life, liberty, property and reputation of

the litigants. This Court further noted that to induct

graduates fresh from the Universities to occupy seats of such

vital powers was neither prudent nor desirable.

58. This Court further found that neither knowledge derived

from books nor pre-service training could be an adequate

substitute for the first-hand experience of the working of the

court-system and the administration of justice begotten

through legal practice. This Court found that the experience

as a lawyer was therefore essential to enable the Judge to

discharge his/her duties and functions efficiently and with

confidence and circumspection. This Court, therefore,

directed all the States to prescribe a minimum of three years' 

43

practice as a lawyer as an essential qualification for

appointment as a Judicial Officer at the lowest rung.

59. Subsequent thereto, the Shetty Commission, in its

Report dated 11th November 1999, noted that though Articles

217 and 233 of the Constitution of India prescribe a

minimum experience of 10 years to be appointed as High

Court Judge and 7 years to be appointed as District Judge,

no such requirement was provided for being eligible to be

appointed as a Civil Judge (Junior Division). It will be

relevant to refer to some of the observations made in the

Shetty Commission Report, which read thus:

“8.30 As to the observation of the Law Commission

in its 14th Report recommending three years

practice at the Bar, we may state that observation

was evidently based on the then existing system of

legal education. The Law Commission made that

report in 1958 when the LL.B. degree course was

only of two years duration for which law practice as

a subject was not in the curriculum.

8.31 In the present system of legal education 3

years or 5 years, law practice is one of the subjects

prescribed for the students. Particularly in the

curriculum under the present 5 years law degree

course, the students have to attend Court

compulsorily to get themselves educated in the

practical training in Court craft.

8.32 It would be, therefore, futile to prescribe three

years practice as an Advocate to have intimate

knowledge of the Court work as a condition for

recruitment to the cadre of Civil Judges (Jr. Divn.).

44

8.33 If it is not out of place to mention, that the

students coming out of the Institute like National

Law School of India University, Bangalore to be

better equipped and more informed than a junior

advocate with three years standing. The students

from National Law School of India University are the

favourites for campus selection by multinationals.

Every year, multinational Companies land at the

school campus and select students of the final year

by offering them a fat salary of Rs. 20,000 to Rs.

25,000. The entire purpose of establishing the

National Law School of India University is to

produce good law graduates for enriching the Indian

Bar. That purpose has been practically defeated by

insisting upon three years Bar practice as a

precondition for entering the judicial service.

8.34 Further, in our opinion, 3 years standing at

the Bar as the minimum qualification for entry into

the judicial service may be wholly unnecessary and

uncalled for in view of the Commission’s

recommendations on Institutional training for the

selected candidates. Attention of the concerned

authorities is invited to the report of the

Commission on judicial education and training an

in particular the broad themes of the curriculum for

induction training. It includes among other things,

practical training through field placement. The

Commission has recommended the induction

training course for about one year by qualified

trainers.

RECOMMENDATION BY THE COMMISSION

8.35 If intensive training is given to young and

brilliant law graduates, it may be unnecessary to

prescribe three years practice in the Bar as a

condition for entering the judicial service. It is not

the opinion of any High Court or State Government

that induction to service of fresh law graduates with

brilliant academic career would be

counterproductive. We consider that it is proper and

necessary to reserve liberty to High Court and State

Governments, as the case may be, to select either 

45

Advocates with certain standing at the Bar or

outstanding law graduates with aptitude for service.

It is not correct to deny such discretion to High

Authorities like, High Courts and State

Governments.

8.36 Those High Courts and State Governments

who are interested in selecting the fresh law

graduates with a scheme of intensive induction

training may move the Supreme Court for

reconsidering the view taken in All India Judges’

Association Case for deleting the condition of three

years standing as Advocate for recruitment to the

cadre of Civil Judges (Jr. Divn.). We trust and hope

that the Supreme Court will reconsider that aspect.”

60. The recommendations of the Shetty Commission were

considered by this Court in the Third AIJA Case. This Court

observed thus:

“32. In All India Judges' Assn. case [(1993) 4 SCC

288 : 1994 SCC (L&S) 148 : (1993) 25 ATC 818]

(SCC at p. 314) this Court has observed that in

order to enter the judicial service, an applicant

must be an advocate of at least three years'

standing. Rules were amended accordingly. With

the passage of time, experience has shown that the

best talent which is available is not attracted to the

judicial service. A bright young law graduate after 3

years of practice finds the judicial service not

attractive enough. It has been recommended by the

Shetty Commission after taking into consideration

the views expressed before it by various authorities,

that the need for an applicant to have been an

advocate for at least 3 years should be done away

with. After taking all the circumstances into

consideration, we accept this recommendation of

the Shetty Commission and the argument of the

learned amicus curiae that it should be no longer 

46

mandatory for an applicant desirous of entering the

judicial service to be an advocate of at least three

years' standing. We, accordingly, in the light of

experience gained after the judgment in All India

Judges case direct to the High Courts and to the

State Governments to amend their rules so as to

enable a fresh law graduate who may not even have

put in three years of practice, to be eligible to

compete and enter the judicial service. We, however,

recommend that a fresh recruit into the judicial

service should be imparted training of not less than

one year, preferably two years.”

61. This Court accordingly directed all the High Courts and

the State Governments to amend their Rules so as to enable

fresh law graduates who may not even have a single day’s

experience in practice as a lawyer to be eligible to compete

and enter the judicial service. This Court further

recommended that a fresh recruit into the judicial service

should be imparted training of not less than one year,

preferably two years.

62. When the matter was subsequently heard, learned

amicus curiae as well as counsel appearing for most of the

High Courts were of the view that the time has come to

review as to whether the requirement for minimum years of

practice as provided by this Court in the Second AIJA Case

is required to be restored.

47

63. In response to the orders passed by this Court dated

25th April 2023 and 18th May 2023, various High Courts have

submitted their affidavits. It will be relevant to note that most

of the High Courts are in agreement that the earlier

requirement of having minimum 3 years’ experience at the

Bar for appearing in the examination of Civil Judge (Junior

Division) needs to be restored.

64. The High Court of Andhra Pradesh has stated that some

instances have come to the notice of the High Court that

some of the Civil Judges (Junior Division) who did not

possess any experience at the Bar, appointed straight away

from the college to the court, are not treating the bar

members and staff members in good spirits and that the

officers are finding it difficult to handle the courts when faced

with procedural issues. It has therefore been recommended

that there should be a minimum experience of 2 years at the

Bar before a candidate is considered to be eligible for

appointment as a Civil Judge (Junior Division). At the same

time, it is also recommended that the existing training

module for 2 years (1 year practical training + 1 year

institutional training) should be continued so that the 

48

candidates, on selection into judicial service, would discharge

their functions more efficiently. The State Government has

also agreed with the views expressed by the High Court.

65. The High Court of Gauhati has recommended for a

minimum 2 years of practice to be made a requirement for a

candidate being eligible to appear in the examination of Civil

Judge (Junior Division).

66. The High Court of Patna as well as the Government of

Bihar have opined that minimum 3 years’ practice as an

advocate should be introduced as a requirement for Civil

Judge (Junior Division) as it would be helpful in appointing

experienced lawyers which would benefit the judicial service

and improve standards of judicial dispensation.

67. The State of Karnataka has stated that it is the

experience of the Bar members and Principal District Judges

that due to the lack of practical professional experience of

such Civil Judges, inconvenience is caused during the

discharge of duty and day-to-day proceedings, especially

when they are passing urgent orders. The State has therefore

recommended minimum 2 years’ practice as an advocate

after completion of law degree to be made as a requirement 

49

for a candidate being eligible to appear in the examination of

Civil Judge (Junior Division).

68. The State of Kerala as well as the High Court of Kerala

have also recommended that the requirement of minimum 3

years’ practice at the Bar needs to be restored.

69. The High Court of Madhya Pradesh has opined that

experience has shown that even candidates who are brilliant

in academics having no experience at the Bar were not able

to handle court proceedings properly. It is also stated that

many oral or written complaints regarding their behavioural

attitude towards advocates, litigants, their superiors and

staff are being received in the High Court on a regular basis.

It is further stated that fresh law graduates having no

experience at the Bar lack maturity and experience in

handling court proceedings. It has therefore recommended to

restore the requirement of experience or practice at the Bar

prior to appointment of Civil Judge (Junior Division).

70. Both the State of Manipur and the High Court of

Manipur have recommended restoration of 3 years’ prior

experience of practice so as to understand the practical

difficulties, challenges faced by lawyers and litigants. It goes 

50

on to state that actual practicing experience is invaluable

and irreplaceable.

71. The High Court of Orissa has stated that inexperienced

candidates take time to acquaint themselves to the

environment of a court which ultimately enables them to

smoothly handle the day-to-day court proceedings. It is

further stated that they are often unaware about the court

decorum and this causes inconvenience in judicial

administration. It is therefore opined by the High Cout of

Orissa that the candidates before entering into the judicial

service should have some practical knowledge about the dayto-day court proceedings and the manner in which the cases

are conducted by the advocates. It has therefore been

recommended that there must be reintroduction of the

requirement of minimum 3 years’ practice before being

considered for appointment as a Civil Judge (Junior

Division).

72. The High Court of Madras as well as the High Court of

Uttarakhand have also recommended that there should be a

reintroduction of the requirement of 3 years’ minimum

practice. The High Court of Uttarakhand has stated that 

51

fresh law graduates with no exposure to the court

environment are not steeped into the culture, etiquette,

temper and conduct of the court proceedings. It further

states that this leads to advocates’ complaining about

misbehaviour and giving ill-treatment to the advocates and

litigants by such new officers. The State of Uttarakhand has

also supported the views of the High Court of Uttarakhand.

73. The High Court of Allahabad as well as the High Court

of Calcutta have also supported the reintroduction of the

requirement of some prior practice to appear for such

examination.

74. The High Court of Delhi has recommended that the

minimum requirement be 1 year of practice at the Bar.

75. Insofar as High Court of Jammu & Kashmir and Ladakh

and the High Court of Gujarat are concerned, they have

recommended 2 years’ minimum practice.

76. It is further to be noted that though one or two High

Courts have stated that the experience should be counted

from the date on which AIBE is passed, most of the High

Courts have not given their opinion on the same. It is only

the State of Orissa, the High Court of Punjab & Haryana, the 

52

High Court of Delhi and the High Court of Jammu & Kashmir

and Ladakh who have recommended that the date of

experience should be counted from the date on which the

provisional registration was granted to a candidate.

77. Insofar as the State of Chhattisgarh is concerned,

though the High Court of Chhattisgarh has recommended

reintroduction of a practice of minimum 3 years, it is the

Government of Chhattisgarh which has opposed the same.

78. Though the High Court of Punjab & Haryana has

recommended the reintroduction of the requirement of

minimum 2 years of experience, the State of Haryana has

opposed the same.

79. The States of Nagaland and Tripura have opposed such

reintroduction.

80. It is further to be noted that insofar as the High Courts

are concerned, except the High Courts of Rajasthan and

Sikkim, no other High Court has opposed such

reintroduction of the pre-requisite of practice at the Bar.

81. From the affidavits of almost all the High Courts, it is

seen that for the last 20 years during which the recruitment 

53

of fresh law graduates as Judicial Officers without a single

day of practice at the Bar has been permitted, the said

endeavour has not been a successful experience. The

appointment of such fresh law graduates has led to many

problems as have been enumerated by us in the aforesaid

paragraphs on the basis of the affidavits filed by the High

Courts.

82. We are conscious of the fact that in the initial years, the

opportunities available to a young lawyer, fresh from college

will be minimal. However, the exposure to courts and more

particularly litigants and their briefs would acquaint them

with the onerous duties and responsibilities of every

stakeholder in the judicial system. It would bring in a

sensitivity to human problems, more clarity in the decision

making process and educate them of the role of the Bar in

justice dispensation.

83. The Judges from the very day on which they assume

office have to deal with the questions of life, liberty, property

and reputation of litigants. As rightly observed, neither

knowledge derived from books nor pre-service training can be

an adequate substitute for the first-hand experience of the 

54

working of the court-system and the administration of

justice. This is possible only when a candidate is exposed to

the atmosphere in the court by assisting the seniors and

observing how the lawyers and the Judges function in the

court. The candidate should be equipped to understand the

intricacies of the functions of a Judge. The experience of

various High Courts has also shown that such fresh law

graduates, upon their entry in judicial service, begin to show

behavioural and temperament problems.

84. We are therefore in agreement with the views expressed

by most of the High Courts that the requirement of

reintroduction of a certain number of years of practice would

be necessary.

85. That leaves us with the question as to whether such

experience should be counted from the date on which the

provisional registration/enrolment is granted or from the

date on which the candidates pass the AIBE. Though Shri

Marlapalle, learned Senior Counsel, who had raised this

question has recommended that such an experience should

be counted from passing of the AIBE, which has also been

supported by Ms. Radhika Gautam, learned counsel 

55

appearing for the Bar Council of India, the Court will have to

balance the requirement of having a minimum experience at

the Bar and also provide an opportunity to the young

meritorious law graduates to appear in the said examination.

86. There could be various reasons as to why the

candidates are not in a position to appear for AIBE. Different

Universities may declare their results at different time which

may lead to a candidate losing the opportunity to appear for

such an examination in a particular year. It will be relevant

to note that after a candidate receives the provisional

registration, he/she is entitled to practice within the State of

which the Bar Council has given the said provisional

registration. In that view of the matter, we are of the view

that the experience should be counted from the date on

which provisional registration has been granted to a

candidate.

87. Another concern that is expressed is that some

candidates may only keep the provisional registration and

would be entitled to appear for the Civil Judge (Junior

Division) Examination after they complete 2 years from the

date of provisional registration. It is submitted that a 

56

candidate may not actually practice even for a single day and

may only on the basis of provisional registration apply for the

Civil Judge (Junior Division) Examination and this would, in

turn, frustrate the very purpose of providing an experience.

88. We find that the said concern can be addressed by

providing certain safeguards. In a Mofussil Court, there

would not be much difficulty inasmuch as taking into

consideration the number of lawyers appearing before the

Court at such places, the Judicial Officers working at that

station can certify that such a candidate has practiced before

such court for a requisite number of years. The difficulty may

arise at larger stations or in metropolitan cities. At such

places, it could be provided that a certificate by an advocate

having a minimum standing of 10 years duly endorsed by a

Principal Judicial Officer of such a District or a Principal

Judicial Officer at a station, certifying that such a candidate

has actually practiced for the requisite number of years

would take care of the said concern. Insofar as the

candidates who are practicing before the High Courts or this

Court, they shall be certified by an advocate who has a

minimum standing of 10 years duly endorsed by an officer 

57

designated by that High Court or this Court. We are also of

the view that the experience of the candidates which they

have gained while working as Law Clerks with any of the

Judges or Judicial Officers in the country should also be

considered while calculating their total number of years of

practice.

IV. CONCLUSION AND DIRECTIONS

89. In view of the aforesaid discussion, we issue the

following directions:

(i) All the High Courts and the State Governments

in the country shall amend the relevant service

Rules to the effect that the quota of reservation

for LDCE for promotion from the cadre of Civil

Judge (Senior Division) to the Higher Judicial

Service is increased to 25%;

(ii) All the High Courts and the State Governments

in the country shall amend the relevant service

rules to the effect that the minimum qualifying

service required to appear in the LDCE for

promotion from the cadre of Civil Judge (Senior

Division) to the Higher Judicial Service be 

58

reduced to 3 years’ service as a Civil Judge

(Senior Division) and the total service required to

be undertaken, including service rendered as a

Civil Judge (Junior Division) and Civil Judge

(Senior Division), be set at a minimum of 7 years’

service;

(iii) All the High Courts and the State Governments

in the country shall amend the relevant service

rules to the effect that 10% of the posts in the

Cadre of Civil Judge (Senior Division) be reserved

for accelerated promotion of Civil Judge (Junior

Division) candidates through LDCE mechanism.

The minimum qualifying service required for

appearing in the said LDCE shall be three years’

service as Civil Judge (Junior Division);

(iv) Needless to state that if any post reserved for

LDCE for either Civil Judge (Senior Division) or

for the Higher Judiciary remains vacant, the

same shall be filled through regular promotion on

the basis of ‘merit-cum-seniority’ in that

particular year. Filling up of the vacant posts in 

59

the ratio considered for LDCE will have to be

carried out from the simultaneous selection

process carried out for regular promotions of the

same year;

(v) The High Courts and the Governments of the

States where the vacancies for the LDCE are not

being calculated based on the cadre strength

shall amend the relevant service rules to the

effect that the vacancies for LDCE be calculated

on the basis of cadre strength;

(vi) All the High Courts and the State Governments

in the country where the Rules are not framed or

if they are framed but are not adequate to judge

the suitability of a candidate for being promoted

to the Cadre of Higher Judicial Service from the

Cadre of Civil Judge (Senior Division) shall frame

fresh Rules or amend the existing Rules keeping

in mind various factors like: (i) whether the

candidate possesses updated knowledge of law;

(ii) the quality of judgments rendered by the

Judicial Officer; (iii) ACRs of the Judicial Officer 

60

of the preceding five years; (iv) disposal rate in

the preceding five years; (v) performance of the

Judicial Officer in the viva voce; and (vi) general

perceptions and awareness as also

communication skills;

(vii) All the High Courts and the State Governments

in the country shall amend the relevant service

rules to the effect that candidates desirous of

appearing in the examination for the post of Civil

Judge (Junior Division) must have practiced for a

minimum period of 3 years to be eligible for the

said examination. To fulfill the said requirement,

the Rules shall mandate that the candidate

produces a certificate to that effect duly certified

either by the Principal Judicial Officer of that

Court or by an advocate of that Court having a

minimum standing of 10 years duly endorsed by

the Principal Judicial Officer of such a District or

a Principal Judicial Officer at such a station.

Insofar as the candidates who are practicing

before the High Courts or this Court, they shall 

61

be certified by an advocate who has a minimum

standing of 10 years duly endorsed by an officer

designated by that High Court or this Court. We

further direct that the experience of the

candidates which they have gained while working

as Law Clerks with any of the Judges or Judicial

Officers in the country should also be considered

while calculating their total number of years of

practice. The Rules shall also mandate that the

candidates who are appointed to the post of Civil

Judge (Junior Division) pursuant to their

selection through the examination must

compulsorily undergo at least 1 year of training

before presiding in a Court;

(viii) It is directed that the number of years of practice

completed by a candidate desirous of appearing

in the examination for the post of Civil Judge

(Junior Division) be calculated from the date of

their provisional enrolment/registration with the

concerned State Bar Council;

62

(ix) It is further directed that the said requirement of

minimum years of practice shall not be

applicable in cases where the concerned High

Court has already initiated the selection process

for the post of Civil Judge (Junior Division) prior

to the date of this judgment and shall be

applicable only from the next recruitment

process; and

(x) All the amendments in terms of the aforesaid

directions shall be carried out by the High Courts

within a period of three months from the date of

this judgment and the concerned State

Governments shall consider and approve the

same within a further period of three months.

90. Needless to state that all such recruitment processes

which have been kept in abeyance, in view of the pendency of

the present proceedings, shall proceed in accordance with

the Rules which were applicable on the date of

advertisement/notification.

91. We place on record our deep gratitude for the assistance

rendered by Shri Siddharth Bhatnagar, learned amicus 

63

curiae ably assisted by Mr. Ankit Yadav and Mr. Aditya

Sidhra, learned counsel. Shri Bhatnagar has tirelessly

consolidated the stands of various High Courts and various

State Governments and also given his valuable suggestions

with regard to the directions to be issued by this Court. We

also place on record our appreciation for the Senior Counsel

and counsel appearing on behalf of the various High Courts,

State Governments and other stakeholders.

.............................CJI

 (B.R. GAVAI)

............................................J

(AUGUSTINE GEORGE MASIH)

…..............................J

(K. VINOD CHANDRAN)

NEW DELHI;

MAY 20, 2025.

Hindu Succession Act, 1956 – s.12 – Effects of adoption – 'Relation Back Principle': Held: Principle is that the adoption by a widow would relate back to the date of death of her husband, creating an immediate coparcenary interest in the joint property, meaning that the adopted child is treated as if they were born to the deceased husband, thus entitled to inherit his property. [Para 18]

[2025] 1 S.C.R. 62 : 2025 INSC 14

Sri Mahesh v. Sangram & Ors.

(Civil Appeal No(s). 36-37 of 2025)

02 January 2025

[C.T. Ravikumar* and Prashant Kumar Mishra, JJ.]

Issue for Consideration

Issue arose whether by virtue of operation of the provisions of ss. 14(1) and 12(c) of the Hindu Succession Act, 1956, the defendant no.1-adoptive mother would become absolute owner of the property prior to the adoption of appellant-adopted son; and as regards the effect of adoption on sale deed and gift deed executed thereafter by adoptive mother.

Headnotes

Hindu Succession Act, 1956 – ss.13, 14 – Hindu Adoptions and Maintenance Act, 1956 – ss.12, 16 – Transfer of Property Act, 1882 – s.122 – Effects of adoption – Principle of Relation Back – Death of the original owner of the property – Following his death, property dispute between his two wives – Property divided among the two on basis of a compromise decree – Thereafter, the first wife-defendant no. 1 who was issueless, adopted the appellant – Thirteen years later, the defendant no. 1 executed sale deed in respect of schedule A properties and gift deed in respect of schedule B and C properties in favour of defendants – Appellant filed suit for partition and separate possession of the schedule properties as also challenged the execution of sale deed and gift deed – Trial court declared gift deed as null and void and granted the entire suit schedule B and C properties to the appellant since he was the sole legal heir of defendant No.1 and rejected his claim as regards the sale deed upholding the sale deed – High Court set aside the order as regards alienation under the gift deed, however, upheld the sale deed – Interference:

Held: Principle of Relation Back is that an adoption by a widow would relate back to the date of death of her husband, creating an immediate coparcenary interest in the joint property, meaning that the adopted child is treated as if they were born to the deceased husband, thus entitled to inherit his property – Adoption by defendant No.1-widow of the original owner would relate back to the date of death of the adoptive father but then all lawful alienations made by defendant No.1-adoptive mother would be binding on the appellant-adopted son – Adoptive son’s right to impeach previous alienations would depend upon the capacity of defendant No.1 who made the alienation as well as on the nature of the action of alienation – First alienation is the one where defendant no.1 effected sale of the properties – Concurrent findings by the courts below that defendant no.1 got absolute right to effect the sale of the property warrant no interference – By applying the ‘Doctrine of Relation Back’, the appellant is bound by the said alienation – As regards the alienation by gift deed, the nature of action of alienation is gift – In order to be valid gift, acceptance of the gift is a pre- requisite – Gift deed has no reference about the delivery of property by the donor and taking possession of property by the donee – Trial court’s holding that the appellant is entitled to entire 'B' and 'C' schedule properties as the sole legal heir of deceased defendant no.1, not faulty as it is the inevitable consequence of application for the ‘Doctrine of Relation Back’; and that the prerequisite for making the gift valid was absent and as such defendant nos. 4 and 5 could not become absolute owners of the schedule properties through gift deed – High Court interfered with the sound reasoning of the trial court, and set aside without providing any good and sustainable reason – Such finding could be reversed only if it is found that the said finding was based on perverse precision of evidence – Concurrent finding of the courts below that the sale deed is valid is upheld – Impugned judgment pertaining to the alienation of properties through gift deed quashed and set aside. [Paras 16-31]

Hindu Succession Act, 1956 – s.12 – Effects of adoption – 'Relation Back Principle':

Held: Principle is that the adoption by a widow would relate back to the date of death of her husband, creating an immediate coparcenary interest in the joint property, meaning that the adopted child is treated as if they were born to the deceased husband, thus entitled to inherit his property. [Para 18]

Case Law Cited

Kasabai Tukaram Karvar and Others v. Nivruti (Dead) Through Legal Heirs and Others, 2022 INSC 733 : [2022] 5 SCR 899 : 2022 SCC Online 918; Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar, 1974 INSC 43 : [1974] 3 SCR 474 : (1974) 2 SCC 156 – relied on.

Mst. Deu and Ors. v. Laxmi Narayan and Ors. (1998) 8 SCC 701 – referred to.

List of Acts

Hindu Succession Act, 1956; Hindu Adoptions and Maintenance Act, 1956; Transfer of Property Act, 1882.

List of Keywords

Adoption; Absolute owner; Adoptive son’s right in properties; Relation Back Principle; Execution of sale deed by adoptive mother; Execution of gift deed by adoptive mother; Nature of alienation; Lawful alienations; Constituents of valid gift; Offer and acceptance of gift; No delivery of gift; No acceptance of gift in legal sense; Adoptive mother as absolute owner; Adoptive son sole legal heir.

Case Arising From

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 36-37 of 2025

From the Judgment and Order dated 14.02.2024 of the High Court of Karnataka Circuit Bench at Dharwad in RFA Nos. 100168 and 100247 of 2018

Appearances for Parties

Ms. Aparajita Singh, Sr. Adv., Rahul Pratap, Mahadev Ganpat Patil, Shubham Rajhans, Advs. for the Appellant.

Shailesh Madiyal, Sr. Adv., M/s. Dharmaprabhas Law Associates, Chandrashekhar A. Chakalabbi, S.K Pandey, Awanish Kumar, Anshul Rai, Abhinav Garg, Ms. G. Anusha, Mahesh Thakur, Ms. Divija Mahajan, Ranvijay Singh Chandel, Mrs. Geetanjali Bedi, Chinmay Deshpande, Anirudh Sanganeria, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Judgment

C.T. Ravikumar, J.

1.Leave granted.

2.In the captioned appeals by Special Leave the appellant calls in question the common judgment dated 14.02.2024 of the Karnataka, High Court, Dharwad Bench, passed in RFA Nos.100168 and 100247, of 2018 which emanated from the judgment and preliminary decree dated 31.03.2018 in OS No.122 of 2009 of the Court of IIIrd Additional Senior Civil Judge, Belagavi.

3.The self-same appellant was the plaintiff in OS No.122 of 2009 filed for partition of the suit schedule properties and separate possession against the defendants. Respondent Nos.1 to 4 herein were the original defendant Nos. 2 to 5 respectively in the said suit. Pending the first appeals, respondent No.5/defendant No.6 died and consequently, his legal representatives were impleaded as additional respondent Nos.5A to 5F and they are respondent Nos.5 to 10 in these appeals.

4.The facts of the case necessary for disposal of the captioned appeals are as follows:-

One Bhavakanna Shahapurkar was the original owner of the suit schedule properties and original defendant No.1-Smt. Parvatibai was his legally wedded wife. They had no issues in their wedlock and hence, with the consent of defendant No.1 the said Bhavakanna married one Laxmibai without dissolving his first marriage with defendant No.1. In his wedlock with Smt. Laxmibai, Bhavakanna Shahpurkar got two children, namely, Parashuram and Renuka. On 04.03.1982, Bhavakanna Shahapurkar died leaving behind two widows. After his demise, OS No.266/1982 was filed by defendant No.1 against Laxmibai, and her children Parashuram and Renuka for partition and separate possession of suit schedule properties. Based on a compromise, a decree was drawn in the said suit and later, in the final decree proceedings defendant No.1 was allotted and thereby acquired 9/32 share in schedule ‘A’ and ‘D’ properties. The appellant herein/the plaintiff was adopted by defendant No.1-Parvatibai on 16.07.1994. The adoption deed was signed and got registered by his natural father and the adoptee mother (defendant No.1) and other witnesses. Later, the appellant came and started residing with defendant No.1 as her adopted son after relinquishing all his rights in his natural family. At the time of his adoption the appellant was aged 21 years. The case of the appellant/plaintiff in OS No.122 of 2009 is that on being adopted he became the legal heir of Bhavakanna and, therefore, entitled to half share in the suit schedule properties. According to him, in such circumstances, defendant No.1 was not having absolute right or title to execute sale deed dated 13.12.2007 in favour of defendants 2 and 3 without his consent as also to execute gift deed dated 27.08.2008 in favour of defendant Nos.4 and 5. Earlier, the appellant demanded for partition of the suit schedule properties. However, defendant No.1 refused to effect partition which made him to institute the aforementioned Original Suit. In fact, in the said suit beside seeking partition and separate possession of the suit schedule properties he also sought to set aside a sale deed executed on 13.12.2007 by defendant No.1 in favour of defendant Nos.2 and 3 (respondent Nos.1 and 2 herein) and a gift deed dated 27.08.2008 made by defendant No.1 in favour of defendant Nos.4 and 5 as null and void.

5.Defendant No.1 filed written statement stating, inter alia, that the suit schedule properties are wrongly described. While admitting the adoption of the appellant/plaintiff on 16.07.1994 as also the fact that subsequently, he came to stay with her, defendant No.1 would state that she became the full and absolute owner of the suit schedule properties after the death of her husband Bhavakanna and further that by virtue of adoption of the appellant/plaintiff she was not divested off her ownership over the suit schedule properties. She had also refuted the claims of the appellant/plaintiff that without his consent she could not have sold the property covered under sale deed dated 13.12.2007 and that she had played fraud in creating gift deed dated 27.08.2008 in respect of properties described in para 1B and C of the plaint, in favour of defendant Nos.4 and 5 viz., respondent Nos.3 and 4. Above all, defendant No.1 denied the claim of acquisition of half share of the suit schedule properties by virtue of his adoption by her and thereby becoming the legal heir of her husband Sri Bhavakanna Shahapurkar.

6.Defendant Nos.2 and 3 jointly filed a separate written statement, but adopting the contentions raised by defendant No.1. They claimed that they are in possession of suit schedule property covered by the sale deed dated 13.12.2007 from the date of its purchase.

7.Defendant Nos.4 and 5 also jointly filed a separate written statement, essentially, reiterating the stand of defendant Nos.1 to 3 regarding the absolute ownership of defendant No.1 over the suit schedule properties and especially, stating that defendant No.1 was having absolute right and title over the property gifted to them under gift deed dated 27.08.2008 and that since its execution they became the absolute owners of the same.

8.Defendant No.6 filed a separate written statement even denying the adoption of the appellant/plaintiff by defendant No.1. He would further state that based on the compromise decree in OS No.266/1982 filed by defendant No.1 whereunder she consented to give him half share in each of the suit schedule properties and after the demise of defendant No.1 he became the only legal heir of Bhavakanna and defendant No.1 as his sister Renuka died in her early age itself on 12.05.1990.

9.Based on the rival pleadings the trial Court framed the following issues and additional issues:-

“ISSUES

1) Whether the plaintiff is entitled for ½ share in the suit schedule property?

2) Whether the plaintiff proves that the sale deed executed on 13/12/2007 is not at all binding upon the plaintiff?

3) Whether the defendant No.1 was competent to sell the suit schedule property to the defendant No. 2 and 3?

4) What other relief is the plaintiff entitled to?

5) What order or decree?

Additional issue dtd: 10/02/2012

1) Whether the plaintiff proves that he is the only legal representative of the deceased defendant No. 1?

Additional Issues dtd: 20/10/2012.

1) Whether the plaintiff proves that he is the only legal representatives of deceased defendant No. 1?

2) Whether the defendants No. 4 and 5 prove that they are the only legal representatives of the deceased defendant No. 1?

3) Whether the defendants No. 4 and 5 prove that they became the absolute owners of the properties mentioned in para 1B and 1C of the plaint by virtue of the gift deed executed by deceased defendant No.1 in their favour on 27/08/2008 and the said gift deed is valid and so the plaintiff has no right over the said properties?

Additional issues framed on 29/07/2017:

1) Whether the defendant No. 6 proves that the plaintiff got executed an adoption deed dtd: 19/07/1994 fraudulently, by force by taking undue advantage of the old age of defendant No.1?

2) Whether the defendant No.6 proves that the defendant No.2 and 3 got executed a sale deed dtd: 13/12/2007 with respect to “A” schedule property from defendant No.1 by undue influence and coercion?

10.It is to be noted that during the pendency of the suit the defendant No.1 died.

11.As per judgment dated 31.03.2018 in OS No.122/2009, the suit was partly decreed and declared gift deed executed by defendant No.1 dated 27.08.2008 in favour of respondent Nos.3 and 4 (defendant Nos.4 and 5) as null and void and granted the entire suit schedule B and C properties to the appellant as he being the sole legal heir of defendant No.1. However, the trial Court rejected his claim in regard to suit schedule A property and thereby, upheld the sale deed executed by defendant No.1 in favour of respondent No.1 and 2 viz., defendant Nos.2 and 3. In such circumstances, RFA No.100247/2018 was filed by the appellant herein and RFA No.100168/2018 was filed by defendant Nos.4 and 5 wherein the plaintiff is the respondent No. 1 and defendant Nos.2,3 & 6 were respondent Nos.2 to 4 respectively. On perusing the records and considering the rival submissions, the High Court formulated the following points for consideration:-

1)Whether the plaintiff is entitled for half share in the suit schedule properties.

2)Whether the plaintiff proves that defendant No.1 is not competent to sell ‘A’ schedule property in favour of defendant Nos.2 and 3 under registered sale deed?

3)Whether plaintiff proves that defendant No. l had no right to execute the gift deed in respect of ‘B’ and ‘C’ schedule properties in favour of defendant Nos.4 and 5 and the gift deed is not binding on the plaintiff?

4)Whether the plaintiff proves that dismissal of the suit for the relief of declaration that registered sale deed executed by defendant No.1 in favour of defendant Nos. 2 and 3 is arbitrary and erroneous?

5)Whether defendant Nos.4 and 5 prove that judgment and decree passed by the trial court declaring that registered gift deed executed by defendant No. l in favour of defendant Nos.4 and 5 as null and void, is arbitrary and erroneous?

6)What order or decree?

12.While considering the first point formulated the High Court took note of the compromise decree passed in OS No.266/1982 filed by defendant No.1 which was followed Ext.D14 and the consequential allotment of shares in favour of defendant No.1 Paragraph 22 of the impugned common judgment would reveal that as per Ext.D14 only 9/32 share in schedule ‘A’ to ‘D’ properties were allotted to and acquired by the defendant. Ultimately, the High Court found that as relates to the properties acquired pursuant to Ext.D14, the defendant No.1 became its absolute owner.

13.As per the impugned common judgment dated 14.02.2024 the High Court, dismissed RFA No.100247/2018 filed by the appellant herein and allowed RFA No.100168/2018 filed by respondent Nos.4 and 5, and the judgment and decree by the trial Court was set aside. Consequent to the setting aside of the decree the suit filed by the appellant viz., OS No.122/2009 was dismissed. In view of the dismissal of RFA No.100247/2018, the Interlocutory Application being IA No.1/2018 therein for temporary injunction was held as not surviving and consequently the same was also dismissed. It is in the said circumstances that the appellant herein who was the plaintiff filed the captioned appeals.

14.In view of the narration of the facts as above, before considering the rival contentions, we think it apposite to refer to the relevant provisions of law as well as the law settled in regard to the questions involved in this matter. Section 14(1) of the Hindu Succession Act, 1956 (for short ‘the Act’) reads thus:-

“14. Property of a female Hindu to be her absolute property.―(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.―In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.”

15.Section 13 of the Act reads thus:-

“13. Computation of degrees.―(1) For the purposes of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.

(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.

(3) Every generation constitutes a degree either ascending or descending.”

16.We will firstly consider the law relating to adoption in view of the case of the appellant that he was adopted by defendant No.1. Though there was an attempt on the part of the defendants to defy adoption concurrently it was found that defendant No.1 had adopted the appellant/the plaintiff as her son. The trial Court and the High Court found that plaintiff has succeeded in proving adoption orally and by producing Ext.P1 registered adoption deed. The Courts have also found that defendant No.1 in her written statement admitted that she had taken plaintiff in adoption. In the contextual situation, it is relevant to refer to the decision in Mst. Deu and Ors. v. Laxmi Narayan and Ors.,1 where this Court held by virtue of Section 16 the Hindu Adoptions and Maintenance Act, 1956 (for brevity ‘The Act of 1956’), that wherever any document registered under the law is produced before the court purporting to record an adoption made and is signed by the persons mentioned therein, the court should presume that the adoption has been made in compliance with the provisions of the said statute unless and until it is disproved. It was further held therein in view of Section 16 of the Act of 1956 that it would be open to the persons who challenge the registered deed of adoption to disprove the same by taking independent proceedings. As noticed hereinbefore in the case on hand the appellant plaintiff had succeeded in proving the factum of his adoption by defendant No.1 and in that regard, he had produced and proved Ext.P1 which is a registered deed of adoption and above all defendant No.1 herself admitted the factum of his adoption in her written statement. In such circumstances, the position is that the appellant/plaintiff was indisputably adopted by defendant No.1 on 16.07.1994.

17.We have already extracted Sections 14(1) of the Hindu Succession Act. For a proper consideration of the questions involved in the case on hand it is only apposite to refer to Section 12(c) of the Act of 1956. It reads thus:-

“12. Effects of adoption.―An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family;

(a)…

(b)…

(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.”

18.Thus, going by proviso (c) to Section 12 of the Act of 1956, it is clear that an adopted child shall not divest any person of any estate which vested him or her before the adoption. We have already taken note of the fact that the date of adoption was 16.07.1994. In the contextual situation it is also relevant to refer to the ‘Relation Back Principle’. The said principle is that adoption by a widow would relate back to the date of death of her husband, creating an immediate coparcenary interest in the joint property, meaning that the adopted child is treated as if they were born to the deceased husband, thus entitled to inherit his property. In Kasabai Tukaram Karvar and Others v. Nivruti (Dead) Through Legal Heirs and Others,2 this Court extracted Paragraph 6 of Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar,3 with agreement thus:-

“10. As far as the doctrine of relation back goes, we need only notice decisions of this Court in Govind Hanumantha Rao Desai v. Nagappa alias Narahari Laxman Rao Deshpande and Sever (1972) 1 SCC 515 and Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar (1974) 2 SCC 156. We may only further expatiate by referring to paragraphs 6, 7 and 9 of Shripad Gajanan Suthankar (Supra).

6. It is established law that the adoption by a widow relates back to the date of the death of the adoptive father, which, in this case, took place in 1921. Indeed, the complexity of the present case arises from the application of this legal fiction of “relation-back” and the limitations on the amplitude of that fiction visa-vis the partition of 1944, in the light of the rulings of the various High Courts and of the Judicial Committee of the Privy Council, and of this Court, the last of which is Govind v. Nagappa. According to the appellant, the rights of the adopted son, armed as he is with the theory of “relation-back”, have to be effectuated retroactively, the guidelines wherefor are available from the decided cases. It is no doubt true that “when a member of a joint family governed by Mitakshara law dies and the widow validly adopts a son to him, a coparcenary interest in the joint property is immediately created by the adoption co-extensive with that which the deceased coparcener had, and it vests at once in the adopted son”. (See Mulla on Hindu Law, 13th Edn. p.516.)

11. The same author, however, points out that:

“the rights of an adopted son arise for the first time on his adoption. He may, by virtue of his rights as adopted son, divest other persons in whom the property vested after the death of the adoptive father, but all lawful alienations made by previous holder would be binding on him. His right to impeach previous alienations would depend upon the capacity of the holder who made the alienation as well as on the nature of the action of alienation. When the holder was a male, who had unfettered right of transfer, e.g., the last surviving member of a joint family, the adopted son could not impeach the transfer. In case of females who had restricted rights of transfer even apart from any adoption, the transfers would be valid only when they are supported by legal necessity”. (ibid; pp. 516 – 517; para 507.)

“An adopted son is bound by alienations made by his adoptive father prior to the adoption to the same extent as a natural-born son would be. (ibid; p. 517 : para 508.)

7. It is settled law that the rights of an adopted son spring into existence only from the moment of the adoption and all alienations made by the widow before the adoption, if they are made for legal necessity or otherwise lawfully, such as with the consent of the next reversioners, are binding on the adopted son.”

19.In fact, the defendants who refuted the claim of the appellant, including defendant No.1 would rely on Section 14(1) of ‘the Act’ and Section 12(c) of the Act of 1956, besides the compromise decree in OS No.266 of 1982 to contend that defendant No.1 became the absolute owner of the suit schedule properties by virtue of the adoption and the operation of the aforesaid provisions much earlier to the adoption of the appellant/plaintiff on 16.07.1994. In fact, it is so contended by them to drive home the point that since defendant No.1 became the absolute owner of the suit schedule property prior to the adoption of the appellant/plaintiff and the sale deed dated 13.12.2007 in favour of defendant Nos.2 and 3 (respondent Nos.1 and 2 herein) as also the gift deed dated 27.08.2007 in favour of defendant No.4 and 5 (respondent Nos.3 and 4 herein), the appellant/plaintiff was bound by such alienation made by defendant No.1.

20.In view of the position of law referred above and the factual position obtained in the case on hand the crucial legal position to be looked into is what is the effect of the compromise decree passed in OS No.266 of 1982 and whether it would be binding on the appellant. In this context, it is also relevant to note that indisputably the adoption of the appellant/plaintiff was on 16.07.1994 and the adoption deed is a registered one which was not disproved by defendants though it is permissible under Section 16 of the Act of 1956. Furthermore, it is relevant to note that it is indisputable that the sale deed in question was executed only on 13.12.2007 by defendant No.1 and the gift deed was executed by her only on 27.08.2007. In other words, the sale deed and the gift deed were executed only subsequent to the adoption of the appellant by defendant No.1 on 16.07.1994. It is in this context that the aforementioned question assumes relevance.

21.As noticed hereinbefore, defendant No.1 filed OS No.266 of 1982 against her husband Bhavakanna, Smt. Laxmibai, the second wife of Bhavakanna, Parsuram and Renuka who are the children of Laxmibai through Bhavakanna. True that the said suit was compromised and a decree was passed in terms of the compromise petition. Defendant No.1 filed Final Decree Proceedings No.75/1988 and in the said proceedings the parties entered into compromise and the compromise petition was marked as Ext.D14 and by virtue of the same defendant No.1 was allotted 9/32 share in A to D schedule properties. Indisputably the adoption of the appellant/plaintiff was subsequent to the compromise decree and Ext.D14 in terms of which defendant No.1 was allotted the shares mentioned as above. In such circumstances, the question is whether by virtue of operation of the provisions of Section 14(1) of the Act and Section 12(c) of the Act of 1956, the defendant No.1 would become the absolute owner of the property prior to the adoption of appellant on 16.07.1994.

22.Obviously, in the case on hand, the factum of adoption of the appellant/the plaintiff by defendant No.1 after the death of adoptive father, on 16.07.1994 is established by the appellant/the plaintiff and it is pertinent to note that the same was admitted by defendant No.1 as well, in her written statement. In such circumstances, in view of the ‘Doctrine of Relation Back’ and by applying the law laid down in Sripad Gajanan Suthankar’s case (supra) relied on with agreement in Kasabai Tukaram Karvar’s case (supra) the adoption by defendant No.1, the widow of Bhavakanna Shahpurkar, would relate back to the date of death of the adoptive father which is 04.03.1982 but then all lawful alienations made by defendant No.1 would be binding on the appellant/plaintiff. As held in Sripad Gajanan Suthankar’s case (supra) in paragraph 11 his right to impeach previous alienations would depend upon the capacity of defendant No.1 who made the alienation as well as on the nature of the action of alienation.

23.The first among the alienations under challenge in the case on hand is the one where defendant No.1 effected sale of the properties covered by registered sale deed dated 13.12.2007 in respect of ‘A’ schedule property in favour of defendant Nos.2 and 3. There is concurrency with respect to the said issue between the trial Court and the High Court. The Courts have held that defendant No.1 got absolute right to effect the sale of the property covered thereunder and that the sale was done in favour of defendant Nos.2 and 3 in accordance with the law. Admittedly, in regard to the sale, defendant No.1 executed the sale deed dated 13.12.2007 and she was not having a case that she had not received sale consideration. By applying the ‘Doctrine of Relation Back’ and the ratio of decisions in Kasabai Tukaram Karvar’s case (supra) and Sripad Gajanan Suthankar’s case (supra) it can only be held that the appellant/plaintiff is bound by the said alienation. This is because of the cumulative effect of the compromise decree in OS No.122 of 2009 followed by Ext.D14 and the allotment of share based on the same. In this context it is also relevant to note that the factum of execution of the sale deed is not disputed by the appellant but his contention is only that defendant No.1 could not have sold the property without his consent and knowledge. Though the alienation was subsequent to his adoption by virtue of the fact that defendant No.1 got absolute right and title in regard to the property covered by the said sale deed dated 13.12.2007 and that a valid sale was effected following the procedures, the challenge of the appellant against the said alienation of property by defendant No.1 in favour of defendant Nos.2 and 3 is not liable to be interfered with. We have no hesitation to hold that the concurrent findings of the trial Court and the High Court in regard to the said sale deed warrant no interference. In such circumstances, dismissal of RFA No.100247 of 2018 filed by the appellant/plaintiff challenging the alienation under the registered sale deed dated 13.12.2007 is only to be confirmed.

24.The other alienation of property by defendant No.1 which is under challenge is the alienation of ‘B’ and ‘C’ schedule properties by registered gift deed dated 27.08.2008 in favour of defendant Nos.4 and 5. It is to be noted that the trial Court and the High Court are at issue in regard to the said alienation. Obviously, the trial Court held that the gift deed dated 27.08.2008 executed by defendant No.1 in favour of defendant Nos.4 and 5 is null and void and is not binding on the plaintiff. Consequent to such declaration the trial Court found that the appellant/plaintiff is entitled to entire ‘B’ and ‘C’ schedule properties as he being the sole legal heir of deceased defendant No.1. Per contra, the High Court found that since defendant No.1 was the absolute owner of the said suit schedule properties as well the appellant/plaintiff got no locus standi to challenge the registered gift deed executed by defendant No.1 in favour of defendant Nos.4 and 5. It is the said finding that resulted in allowing RFA No.100168 of 2018 filed by defendant Nos.4 and 5. Consequently, the High Court set aside the judgment and decree passed by the trial Court to that extent and resultantly dismissed the suit filed by the appellant/plaintiff.

25.In the light of the ‘Doctrine of Relation Back’ and the ratio in the decisions in Kasabhai Tukaram Karwar’s case (supra) and Sripad Gajanan Suthankar’s case (supra) we have already found that all lawful alienations made by defendant No.1 will bind the appellant/plaintiff and his right to impeach previous alienation would depend upon the capacity of the holder who make the alienation as well as on the nature of the action of alienation. The nature of action of alienation is gift and it is allegedly made in favour of defendant Nos.4 and 5. It is to be noted that defendant Nos.4 and 5 though got a case that earlier defendant No.1 executed a Will in regard to the said properties in their favour they themselves would admit and plead that subsequently the properties were given in gift as per registered gift deed dated 27.08.2008. The very fact that the defendant Nos.4 and 5 themselves relied on the gift deed would go to show that if at all there was a Will that was revoked. At any rate, it is a fact that even defendant Nos.4 and 5 did not rely on the same.

26.Section 122 of the Transfer of Property Act, 1882 (for short, ‘the TP Act’) defines gift as under:-

“122. “Gift” defined.—“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made.— Such acceptance must be made during the lifetime of the donor and while he is till capable of giving,

If the donee dies before acceptance, the gift is void.”

27.A perusal of Section 122 of the TP Act would make it clear about the pre-requisites of a valid gift. Going by the same, two things are necessary to constitute a valid gift, namely, (i) an offer and, (ii) its acceptance. A scanning of the judgment of the trial Court in regard to the alienation by a gift by the defendant No.1 in favour of defendant Nos.4 and 5 it is to be noted that several reasons have been given for holding the same as null and void. To start with, it is to be noted that in the gift deed dated 27.08.2008 it is recited thus:-

“WHEREAS, the Donees are natural Grand Childrens of Donor i.e., (Donor’s own daughter’s own childrens), the Donor is full and absolute owner of the Properties, more fully described in the Schedule hereunder and hereinafter referred to as the Schedule Property’, by virtue of Final Court Decree No. FDP-75/88, dated 02.01.1990 & Exe. Nos. 319/90 R. No.: 1799 dated 05.09.1990. And the said Schedule mentioned properties are exclusive properties which are in actual physical possession and enjoyment of the said Donor.”

28.Going by the afore extracted recital in the deed of gift, the donees are natural grand-children of donor i.e., donor’s own daughter’s own children. But the fact is that even the defendant witnesses who are related to defendant Nos.2 and 3 would admit the fact that defendant Nos.4 and 5 are not the children of own daughter of defendant No.1. The adoption deed itself would go to show that the adoptive mother who is defendant No.1 was issueless. Thus, when the admitted position is that defendant No.1 got no children, the defendant Nos.4 and 5 cannot claim the status that they are the own children of the own daughter of defendant No.1. That apart, going by the afore extracted recital, the schedule mentioned properties in the gift deed viz., the suit schedule ‘B’ and ‘C’ properties are exclusive properties in the actual physical possession and enjoyment of defendant No.1. It is to be noted that the very case of appellant/plaintiff is that he is in exclusive possession of the said suit schedule properties. In the contextual situation, it is to be noted that in Ext.D6(a) gift deed there is no reference about the delivery of property by the donor and taking possession of property by the donee. Defendant No.4 was examined in the suit as DW-3. During cross-examination he would depose that he did not know as to who are in possession of properties comprised in CTS No.667 and CTS No.4879/67 and 278, he also would say that he is absolutely unaware as to who is using CTS 667 and who is residing in CTS No.4879/67, it is to be noted that they are the properties described as ‘B’ and ‘C’ schedule properties in the suit and also as properties gifted to defendant Nos.4 and 5 as per Ext.D6(a) gift deed dated 27.08.2008. It is also relevant to note that while being cross-examined as DW-3 the fourth defendant would also depose that when the gift deed was registered the said properties covered by the same were not in his possession and he voluntarily stated that it was with defendant No.1 till her lifetime. It is also evident from his oral testimony that he would admit that the possession of the said property was not taken either on the date of Ext.D6 or even thereafter. It is in the said circumstances specifically dealt with in detail that the trial Court arrived at the conclusion that defendant No.1 was not knowing the contents of Ext.D6(a) gift deed and further that ‘B’ and ‘C’ schedule properties referred to in Ext.D6(a) were not delivered to the possession of defendant Nos.4 and 5 even on the date of execution of Ext.D6(a) and even at the time of examination before the Court defendant Nos.4 was not aware as to who are the persons who are in possession of ‘B’ and ‘C’ schedule properties. Same was the case with respect to defendant No.5. Moreover, the trial Court took note of the fact that the evidence on record would reveal that defendant No.1 was residing at Nanawadi at the time of her death along with DW-5. As noticed hereinbefore when the fact is that the properties covered by the gift deed are not delivered either at the time of the alleged execution of the gift deed or at any later point of time and the fact that the defendant(s) got no case that at any later point of time that they had initiated any steps to get possession of the same either during the lifetime of defendant No.1 or even after her lifetime, we do not find any reason as to how the trial Court could be said to have erred in holding that defendant Nos.4 and 5 could not become absolute owners of ‘B’ and ‘C’ schedule properties through Ext.D6(a) gift deed.

29.It is the said finding of the trial Court that was set aside by the High Court in the first appeal with respect to the alienation under the gift deed dated 27.08.2008. A careful scanning of the impugned common judgment of the High Court would reveal that the sound reasoning of the trial Court in regard to this issue was interfered with and set aside without detailed discussion and at the same time without providing any good and sustainable reason therefor. It appears that the High Court was carried away by the fact that the gift deed is a registered one. We have already taken note of the fact that in order to be valid, acceptance of the gift is a pre-requisite. When the very case of one of the donees of the gift viz., the defendant No.4 that the property was in the possession of the donor herself till her death itself would reveal that the properties were not delivered and in other words in the legal sense there was no acceptance. The fact that defendant No.4 himself depose before the Court that he was not aware of the fact as to in whose possession the gifted properties lie with, would justify the conclusions arrived at by the trial Court. True that the First Appellate Court will be having the power to reappreciate the entire evidence and to substitute any finding of the trial Court if it is legally required. At the same time, when once it is found that a sound reasoning given by a trial Court for returning a finding with respect to a definite issue the same cannot be likely interfered without giving appropriate sustainable reasons. The position with respect to the gift deed is discussed in detail by the trial Court and when it arrived at the conclusion that the pre-requisite for making the same valid was absent such a finding could be reversed only if it is found that the said finding was based on perverse precision of evidence. In the case on hand, the discussion as above would reveal that the pre-requisite to constitute a valid gift is lacking and the evidence discussed by the trial Court would support the said finding we do not find any reason for the Appellate Court to interfere with the same. The declaration that gift deed dated 27.08.2008 is null and void is made by the trial Court in the aforesaid circumstances and it is only as a necessary sequel that the trial Court held that the appellant/plaintiff is entitled to entire ‘B’ and ‘C’ schedule properties as the sole legal heir of deceased defendant No.1. As noted hereinbefore, DW-1 herself in her written statement admitted the adoption of the appellant/plaintiff as her son and the registered adoption deed could fortify the same. When that be so the finding that the appellant is entitled to the said properties being the sole legal heir of deceased defendant No.1 cannot be said to be faulty as it is the inevitable consequence of application for the ‘Doctrine of Relation Back’ and the ratio of the decisions in Kasabai Tukaram Karvar’s case (supra) and Sripad Gajanan Suthankar’s case (supra).

30.In the result the appeal is partly allowed. The concurrent finding of the courts below that the sale deed dated 13.12.2007 in favour of defendant Nos.2 and 3 is valid and that the appellant/plaintiff is not entitled to any share in ‘A’ schedule property is confirmed and consequently the appeal against the judgment in RFA No.100247 of 2018, viz., SLP (C) No.10558 of 2024 is dismissed.

31.The appeal against the judgment in RFA No.100168 of 2018 against the reversal of the judgment and the decree of the trial Court pertaining to the alienation of properties through gift deed dated 27.08.2008 and the gift deed itself, is allowed and the judgment of the High Court in RFA No.100168/2018 is quashed and set aside. Consequently, the judgment and decree of the trial Court holding the gift deed dated 27.08.2008 as null and void and the finding that the appellant/plaintiff is entitled to entire ‘B’ and ‘C’ schedule properties as the sole heir of deceased defendant No.1 are restored.

32.In the circumstances there will be no order as to costs.

Result of the case: Appeal partly allowed.

1 (1998) 8 SCC 701

2 2022 INSC 733 : [2022] 5 SCR 899 : 2022 SCC Online 918

3 1974 INSC 43 : [1974] 3 SCR 474 : (1974) 2 SCC 156