SUPREME COURT REPORTS [1950]

1950 set aside. As the High Court, however, has dismissed -- the suit only on the ground of non-attestation of the Sarju Pmhad mortgage bond and did not consider the other points

;; ja which were raised before it, the case must go. back to Jwaleshw>ri that court m order that the other matters, which have Prntap Narain been left undecided, may be heard and decided by the

Singh & Others. learned Judges and the case disposed of in accordance with law. The plaintiff appellant is entitled to costs of

fakherjea J. this hearing as well as the costs of the High Court

Nov. 30.

against defendant No. 1.

Appeal allowed.

Agent for the appellant: Rajindar Narain.

Agent for the respondents: 5. P. Varma.

A. M. MAIR & CO.

GORDHANDASS SAGARMULL. [SAIYID FAZL Au, PATANJALI SASTRI and

MEHR CHAND MAHAJAN JJ.] Arbitration-Contract by broer for sale of goods by "sold" and "bought" notes-Arbitration clause-Seller denying right of b•roker to enforce arbitral ,; nn clause-~J urisdiction of arbitrators- Valid, ity of award-Construction of contract.

The appellants, a firm of brokers, entered into a' contract for the sale and purchase of a quantity of jute under a ''sold note"

addressed to the respondents which they signed as " A & Co.,

brokers" and a "bought note" of the same date and for the same quantity of jute addressed to a third person in which also they signed as ' 1 A & Co., brokers".

The" sold note" contained the usual arbitration clause under which '' all matters, questions, disputes, differences and/.or. cla.ims, arising out of and/or concerning, and/or in connection and/or in consequence of, or relating to, the contract ......... shall be referred to the arbitration of the Bengal Chamber of Commerce." A dispute having arisen with regard to a matter wbich admittedly arose out of the contract evidenced by the sold note, the appellants referred the dispute for arbitration.

The respondents raised before the arbitrators the further contention that as the appellants were only brokers they were not entitled to refer the matter to arbitration.

The arbitrators made an award in favour of the appellants.

The respondents wade an application to the High Court under the Indian Arbitration Act for setting aside the award: Held that,. assuming that it was open to the respondents to raise this objection at that stage, inasmuch as this further dispute -

was also one which turned on the true interpretation of the 1950 contraet a.nd the reSpondents must have recourse to the contract to estJ.blish their claim, this was also a dispute arising out of or .4, M. Mair & Co. concerning the contract and as such fell within the arbitration v. clause, and the award could not be set a.side under the Indian Gordhandass

Arbitration Act, 1.940, on the ground that it was beyond iuris- Sagarmull. diction and void.

Heyman v. Darwins Ltd. ([1942] A.O. 356)referred to.

APPELL.ATE JURISDICTION: Civil Appeal No. XLII of 1950.

Appeal from the judgment of the Calcutta H!gh Court (Harries C.J. and Chakravarthi J.) in Appeal from Original Order No. 78 of 1948. , N. C. Chatterjee (B. Sen, with him), for the appellants.

A. N. Grover, for the respondents.

1950. November 30. The judgment of Faz! Ali and Patanjali Sastri JJ. was delivered by

F .AZ'L ALI J .-This is an appeal from a judgment of a E'azl Ali J.

Bench of the High Court of Judicature at Calcutta in West Bengal, reversing the decision of a single Judge of that Court, who had refused to set aside an award given by the arbitration tribunal of the Bengal Chamber of Commerce on a submission made by the respondents.

The facts of the case are as follows.

On the 25th January, 1946, the appellants entered into a contract with the respondents for the sale of 5,000 maunds of jute, which was evidenced by a "sold

note" (Exhibit A), which is in the form of a letter addressed to the respondents, commencing with these words: "We have this day sold by your order and for your account to the undersigned, etc." The word

"undersigned " admittedly refers to the appellants, and, at the end of the contract, below their signature, the word "brokers" is written. On the same day, a

"bought note" (Exhibit B) was addressed by the appellants to the Bengal Jute Mill Company, with the following statement: "We have this day bought by your ortler and for your account from the undersigned,

i9.10 etc." In this note also, the word "undersigned" refers --:- & 0 to the appellants, and, underneath their signature, the A. M. ~r

0 • word "brokers" appears, as in the "sold note." There

Gordhandass are various provisions in the sold note, relating to

Sagarn1ull. delivery of jute, non-delivery of documents, non- . acceptance of documents, claims, etc., but the most Fa•' Ali J. material provisions are to be found in paragraphs 10 and 11. Paragraph 10 provides that the sellers may in certain cases be granted an .extension of time for

divering the jute for a period not exceeding thirty days from the due date free of all penalties, and if the contract is not implemented within the extended period, the buyers would be entitled to several options, one of them being to cancel the contract and charge the sellers the difference between the contract rate and the market rate on the day on which the option is declared. In the same paragraph, there is another provision to the -following effect : ·-

" Sellers shall notify Buyers that goods will or will not be shipped within such extended period rferred to in (a) and in the case of sellers intimating that they will be unable to ship within the extended time Buyers shall exercise their option within 5 working days of receiving notice and notify Sellers. In the absence of any such notice from Sellers it shall be deemed that the goods have not been shipped 'and Buyers shall exercise their option within 5 working days after expiration of extended date and notify Sellers."

The 11th paragraph provides among other things that •all matters, questions, disputes, differences and/or claims arising out of and/or concerning and/or in connection and/or in consequence of or relatiµg to this Contract whether or not obligations of either or both parties under this contract be subsisting at the time of such disputes and whether or not this contract has been terminated or purported to be terminated or completed shall be referred to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted." •

It is common ground that the respondents delivered 1950 2,256 maunds of jute under . the contract, but the --:- h l f 2 744 d Id t b d 1. d "th" A. M. Ma>r&Co. a ance o , maun s cou no e e ivere w1 m the stipulated period, and, by mutual agreement, time Gord; ndass

was extended up to the 30th June, 1946. On the 2nd Sa.garmul!.

July, 1946, the respondents addressed a letter to the appellants stating that the balance of jute could not be Fazl Ali J. despatched owing to lack of wagons, and "extension" was requested for a period of one month. •Jn reply to this letter, which was received by the appellants on or about the 3rd July, 1946, time was extended till the 31st July, 1946. On the same day on which the reply was received by the respondents, i.e., on the 9th July, 1946, they addressed a letter to the appellants pointing out that the extension of time had not been intimated within the 5th working day as provided in the contract and therefore the contract was automatically cancelled.

After this letter, some further correspondence followed between the two parties, and finally a bill of difference amounting to Rs. 4, 116 .was submitted by the appellants to the respondents, who, in their turn, denied their liability to pay the sum. The appellants thereupon claimed arbitration under Clause 11 of the sold note and submitted the dispute between them and the respondents to the Bengal Chamber of Commerce. On the 6th February, 1947, the Tribunal of Arbitration made an award to the effect that the due date of contract had been extended by mutual agreement up to the 31st July, 1946, and accordingly the respondents .should pay to the appellants a sum of Rs. 4,116 together with interest at the rate of 4% per annum from the 10th August, 1946, until the date of the award.

A sum of Rs. 210 was also held to be payable by the respondents on account of costs. Nearly a year later, on the 19th February, 1949, a petition was presented by the respondents under the Indian Arbitration Act, 1940, to the High Court at Calcutta, in its ordinary original civil jurisdiction, praying inter alia that the award may be adjudged to be without jurisdiction and void and not binding on the respondents, and that it may be set aside. The main point raised by the

1950 respondents in the petition was that it was not open to -- the appellants to invoke the arbitration clause, as the A.kI.l.!air&Oo.B lJ t "1·11c d th 11 t v. enga u e n L ompany an no t e appe an s were

Gordha•dass the real party to the contract and the appellants had sagarmult. acted as mere brokers. The appellants asserted in reply that the allegation made by the respondents in regard Fazl Ali J. to there being no privity between them and the appellants was wrong. and in paragraph 16 of their affidavit they statedas follows :-

"With regard to paragraph 7 of the petition I crave reference to the said contract for its true construction and effect. I say as I have already stated that according to the custom or usage or practice of the trade the respondent is entitled to charge brokerage and also to enforce the terms of the said contract."

The case was heard by Sinha]., who dismissed the petition on the ground that the contract was directly between the respondents and the appellants. The learned Judge also observed that if the right of the appellants to enforce the contract depended upon the existence of custom it would have been necessary to take evidence and the arbitrators would have had jurisdiction to decide the question of the existence of custom.

The respondents being dissatisfied with the judgment of Sinha ]., preferred an appeal, which was heard and disposed of by a Division Bench of the High Court consisting of the learned Chief Justice and Chakravarthi].

The learned Judges held that having regard to the fact that the appellants' own contention was that they had entered into the contract as brokers and were entitled to enforce its terms by reason of the usage or custom of the trade, it was not open to Sinha J. to treat them as principals, and the award was liable to be set aside on the ground that the arbitration tribunal had no jurisdiction to make an award at the instance of a per. son who was not a principal party to the contract. The appellants thereafter having obtained a certificate from the High Court under section 109 (c) of the Code of Civil Procedure, preferred this appeal.

It seems to us that this appeal can be disposed of on 1950 a short ground. vVe have carefully read the affidavit -- filed on behalf of the appellants in the trial cuurt, and A. M. Mair & Co. we are unable to hold that their case was that they Gord; ndass were not parties to the contract or that they had asked Sagarmull. the court to proceed on the sole ground that they were entitled to enforce the contract by virtue of the custom Fa•Z Ali J. or usage of the trade. In our opinion, the position which was taken up by them may be summed up as follows:-

(1) They did not accept the allegations made by the respondents that they were not parties to any arbitration agreement with the respondents.

(2) They asked the Court to construe the contract and its effect and asserted that they were entitled to enforce it.

(3) They also stated that they were entitled to enforce the contract according to the custom or usage of the trade, The principal dispute raised in this case was whether the extension of time for delivery was granted within the time limited in the contract. That dispute is cer. tainly covered by the arbitration clause. The further dispute that, he brokers (appellants) were not parties to the contract in their own right as principals but entered into the contract only on behalf of the Bengal Jute Mill Company does not appear to have been raised until the matter wenL to the arbitrators. Assuming that at that stage it was open to the respondents to raise such an objection, after the other dispute which clearly fell within the arbitration clause was referred to the arbitrators, this further dispute is also one which turns upon the true interpretation of the contract, so that the respondents must have recourse to the contract to establish their claim that the appellants were not bound as principals while the latter say that they were.

If that is the position, such a dispute, the determina. tion of which turns on the true construction of the contract, would also seem to be a dispute, under pr arising out of or concerning the contract. In a,

lOi

~ 50 passage quoted in Heyman v. Darwins Ltd.('), Lord

A. M. Mair &Co. Dunedin propounds the test thus: - "If a party v. has to have recourse to the contract, that dispute is

Gordhondass a dispute under the contract". Here, the respondents

Sagarmul!. must have recourse to the contract to establish their

Fa.Z Ali J. case and therefore it is a dispute falling within the arbitration clause. The error into which the learned Judges of the appellate Bench of the High Court appear to have fallen was their regarding the dispute raised by the respondent in respect of the position of the appellants under the contract as having the same consequence as a dispute as to the contract ever having been entered into.

Mahajan J.

If, therefore, we come to the conclusion that both the disputes raised by the respondents fall within the scope of the arbitration clause, then there is an end of the matter, for the arbitrators would have jurisdiction to adjudicate on the disputes, and we are not conc<"rned with any error of law or f_act committed by them or any omission on their part to consider any of the matters. In this view, it would not be for us to determine the true construction of the contract and find out whether the respondents' contention is correct or not.

Once the dispute is found to be within the.scope of the arbitration clause, it is no part of the province of the court to enter into the merits of the dispute.

In the result, we allow this appeal, set aside the judgment of the appellate Bench of the High Court and restore the order of Sinha J. The appellants will be entitled to their costs throughout.

MAHAJAN J.-I agree with my brother Fazl Ali that this appeal be allowed with costs.

Appeal allowed.

Agent for the appellants: P. K. Chatterjee.

Agent for the respondents : J1.f. G. Poddar.

(I I

[1942] A.C. 356,

SUPREME COURT REPORTS [1950]

1950

Prntap Narain

Rajindar Narain

P. Varma

A. M. MAIR & CO

GORDHANDASS SAGARMULL

PATANJALI SASTRI

MEHR CHAND MAHAJAN JJ.

Bengal Chamber of Commerce

Harries C.J.

Chakravarthi

N. C. Chatterjee

B. Sen

A. N. Grover

Faz! Ali

Patanjali Sastri

F .AZ'L ALI

E'azl Ali

High Court of Judicature at Calcutta

West Bengal

25th January, 1946

Bengal Jute Mill Company

3rd July, 1946

31st July, 1946

9th July, 1946

Clause 11

6th February, 1947

10th August, 1946

19th February, 1949

Indian Arbitration Act, 1940

High Court at Calcutta

Fazl Ali

Sinha

Sinha

section 109

the Code of Civil Procedure

A. M. Mair & Co.

Sagarmull

Fa•Z Ali

Sagarmul

Ali

Mahajan

MAHAJAN

Fazl Ali

P. K. Chatterjee

G. Poddar


S.C.R.

SUPREME COURT REPORTS

SETH PREMCHAND SATRAMDAS

THE STATE OF BIHAR. [SAIYID FAZL ALI, MUKHERJEA and

CHANDRASEKHARA AIYAR JJ.J

Bihar Sales Tax Act (VI of 1944), s. 21 (3)-0rder of High 0011.rt Tefttsirig to require Board of Reven,~J, g to state case-Appeal to Federal Coivt-Maintainability-Letters Patent ', Patna, High Court 1, cl. 31-" Final Order "-Order in exercise of advisory jurisdiction of High Cmwt.

No appe!tl lay to the Federal Cou!'t from an order of the

Pt.:na High Court dismissing an application under s. 21 (3) of the Bihar Sales Tax Act, 1941, to di!'ect the Bi-ard of Revenue, Bihar, to state a case and refer it to the High Court.

Such an order i!; l not a" final order" within the meaning of cl. 31 of the Letters Patent of the Patna High Oourt 1 inasmuch as 11.n order of the High Court under s. 21 (3) is advisory and standing by itself docs not bind or affect the rights of the parties though the

ultiwate order passed by the Board of Revenue may be based on the opinion expressed by tbe High Court. Nor is such an order passed by the High Court in the exercise either of its appellate or original jurisdiction. within the meaning of the said clause.

Sri Jriahanl Ha,.ihar Gir v. Commissioner of IncOme-tax, Bihar and Orissa (A.LR. 1941 Pat. 225) and Tata Iron and Steel Company v. Chief Revenue Authority, Bombay (50 I.A. 21:J 1 applied.

Feroze Shah Kaka Khel v. Incametax 001nmissioner, Punjab (A.LR. 1931 Lah. 138) disapproved.

APPELLATE JURISDICTION: Civil Appeal No. 61 of 1950.

Appeal from an order of the High Court of Patna dated 9th September, 1948, (Agarwala C.J. and Meredith J.) in M.J.C. N9. 5 of 1948.

The appeal was originally filed as Federal Court Appeal No. 71 of 1948 on a certificate granted by the Patna High Co.urt under cl. 31 of the Letters Patent of that High Court that the case was a fit one for appeal to the Federal Court.

H. P. Sinha (S. C. Sinha, with him) for the appellant.

S. K. Mitra (S. L. Chibber, with him) for the respondent.

1950. November 30.

The judgment of the Court was, d.llvrd by F AZL Au J.

Nov. 30.

19'0 FAZL Au J .--This is an appeal from an order of the -- High Court of Judicature at Patna dated the 9th Seth Premchand September, 1948, declining to call upon the Board of

Satramdas d 3 f h v.

Revenue to state a case un er section 21 ( ) o t e Th• Stars of Bihar Sales Tax Act, 1944 (Act VI of 1944), with Bihar. reference to an assessment made under that Act.

Fast Ali J.

The Bihar Sales Tax Act was passed in 1944, and section 4 of the Act provides that "every dealer whose gross turnover during the year immediately preceding

the commencement of the Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified." It is not disputed that, having regard to the definitions of dealer, goods and sale under the Act, the appellant, who has been doing C0)1tract

work on a fairly extensive scale for the Central Public vVorks Department and the East Indian Railway,. comes within the category of a dealer mentioned in section 4.

Section 7 of the Act provides that "no dealer shall, while being liable under section 4 to pay tax under the Act, carry on business as a dealer unless he has been registered under the Act and possesses a registration certificate". In pursuance of this provision, the appellant filed an application for registration on the 19th December, 1944, and a certificate of registration was issued to him on the 21st December,

1944. On the 8th October, 1945, the Sales Tax Officer issued a notice to the appellant asking him to produce his accounts on 10th November, 1945, and to show cause why in addition to the tax to be finally assessed on him a penalty not exceeding one and a half times the amount should not be imposed on him under section JO (5) of the Act.

Section JO (5), under which the. notice purported to have been issued, runs thus:--,"·.

"If upon information which has come into his possession, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in P2spect of any period and has nevertheless wilfully failed to apply for registration, the Commissioner sh; i.11, alt~ giving the dealer a reasonable opportunity o1 l:ieing '~ heard, assess, to the best of his judgment, the amount \.,. of tax, if any, due from the dealer in respect of such \

period and all subsequent periods and the Commis- 19so sioner may direct that the dealer shall pay, by way of 8 -- . . . eth Premchaud penalty, m add1t10n to the amount so assessed, , a sum Satramdas not exceeding one and a half times that amount. ' v.

The appellant appeared before the Sales Tax Officer The State of in response to this notice, but obtained several adjourn- B1har. ments till 16th March, 1946, and ultimately failed to

B'a11Z Ali J. appear. Thereupon, he was assessed by the Sales Tax

Officer, according to the best of his judgment, and was ordered to pay Rs. 4,526-13-0 as tax and a penalty amounting to one and a half times the amount assessed, under section 10 (5) of the Act.

The appellant appealed to the Commissioner against the assessment and the penalty levied upon him, but his appeal was dismissed on the 6th June, 1946.

He then filed a petition for revision to the Board of Revenue, against the order of the Commissioner, but it was dismissed on the 28th May, 1947.

He thereupon moved the Board of Revenue to refer to the High Court certain questions of law arising out of its order of the 28th May, but Mr. N. Baksi, a Member of the Board, by his order of the 4th December, 1947, rejected the petition with the following observations :-

"No case for review of my predecessor's order made out. No reference necessary."

Section 21 of the Act provides that if the Board of Revenue refuses to make a reference to the High Court, the applicant may apply to the High Court against such refusal, and the High Court, if it is not ' satisfied that such refusal was justified, may require the Board of Revenue to state a case and refer it to the High .Court.

The section also provides that "the High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Board of Revenue a copy of such judgment under .the seal of the Court ......... and the Board shall .dispoe of he case accordingly." In accordance with tins sect10n, the appellant made an i.}}Nic:c\ticm tQ the. High Court praying that the Board of Revenue may be called upon to state a case and refer

1950 it to the High Court.

Dealing with this application,

8 th Ph d the High Court pointed out that the Member of ' sat;::;:;.:~ the Board had not been asked to review his prev. decessor's order but only to state a case, and gave the The State of following directions :-

Bihor. "The case must, therefore, go back to the Board of

Fa•t .!ti J, Revenue for a case to be stated or for a proper order rejecting the application to be passed."

The Board then reheard the matter and rejected the application of the appellant and refused to state a case and refer it to the High Court.

The appellant thereafter made an application to the High Court for requiring the Board of levenue to state a case, but this application was summarily rejected. He then applied to the High Court for leave to appeal to the Federal Court, which the High Court granted, following the decision of a Full Bench of the Lahore High Court in Feroze Shah Kaka Khel v. lncome-tax Commissioner, Punjab and N.W.F.P., Lahore1• The High Court pointed out in the order granting leave that in the appeal that was taken to the Privy Council in the Lahore case, an objection had been raised as to the competency of the appeal, but the Privy Council, while dismissing the appeal on the merits, had made the following observations:-

"The objection is a serious one.

Admittedly such an appeal as the present is not authorized by the Income.tax Act itself. If open at all, it must be justified under clause 29, Letters Patent of the Lahore High Court, as being an appeal from a final judgment, decree or order made in the exercise of original jurisdiction by a Division Bench of the High Court. And this present appeal was held by the Full Court to be so justified.

Before the Board the question was not fully argued, and their Lordships accordingly refrain from expressing any opinion whatever upon it"(').

The High Court in granting leave to the appellant seems to have been influenced mainly by the fact that the view of the Lahore High Court had not been held by the Privy Council to be wrong.

(ll A.LR. 1931Lah.138.

(2) A.LR. 1933 P.O. 198, ...

At the commencement of the hearing of the appeal ~~ in this Court, a preliminary objection was raised by Seth Premchand the learned counsel for the respondent that this appeal Satramdas was not competent, and, on hearing both the parties, v. we are of the opinion that the objection is well- TheStateof founded.

Bihar.

In Sri Mahanth Harihar Gir v. Commissioner of In- Fa•t Ati J. come-tax, Bihar and Orissa (1) it was held by a special Bench of the Patna High Court that no appeal lay to His Majesty in Council under clause 31 of the Letters Patent of the Patna High Court, from an order of the High Court dismissing an application under section 66 (3) of the Income-tax Act, (a provision similar to section 21 of the Act before us) to direct the Commissioner of Income-tax to state a case.

In that case, the whole Jaw on the subject has been clearly and exhaustively dealt with, and it has been pointed out that the view taken by the Full Bench of the.Lahore High

Court in the case cited by the appellant was not supported by several other High Courts and that the Privy Council also, when the matter came before it, refrained from expressing any opinion as to its correctness. In our opinion, the view expressed in the Patna case is correct.

Clause 31 of the Letters Patent of the Patna High Court, on the strength of which the appellant resists the preliminary objection raised by the respondent, runs thus:-

"And We do further ordain that any person or persons may appeal to Us, Our heirs and successors, in

Otr or Their Privy Council, in any matter not be mg of criminal jurisdiction," from any final judgment, decree, or order of the said High Court of Judicature at Patna, made on appeal and from any final judgment, decree on order made in .the i; xercise of original juis?i_ction by Judges of the said High Court or of any D1v1s10n Court, from which an appeal does not lie to the said High Court under the provisions contained in the 10th clause of these

11) A.I.R. 1941 Pat. 225.

1950 presents : provided, in either case, that the sum or

S -- nrn.tter at issue is of the amount or value of not less eth Premchand h h d h I Satramdas t an ten t onsan rupees, or that snc ]UC gment,

v, decree or order involves, directly or indirectly, some The State of claim, demand or question to or respecting property

B•har. amounting to or of the value of not less than ten

Fazl Ali J. thousand rupees; or from any other final judgment, dectee or order made either on appeal or otherwise as aforesaid, when the said High Court declares that the case is a flt one for appeal to Us ...... "

In order to attract the provisions of this clause, it is necessary to show, firstly, that the order under appeal is a final order ; and secondly, that it was passed in the exercise of the original or appellate jurisdiction of the High Court.

The second requirement clearly follows from the concluding part of the clause. It seems to us that the order appealed against in this case, !cannot be reg<\rded as a final order, . because it does , not of its own force bind or affect the rights of the ; parties.

All that the High Court is required to do I under section 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court. It is true that the Board's order is based on what is stated by the High Court to be the correct legal position, but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties, and the final order in the matter is the order which is passed ultimately by the Board of Revenue. This question has been fully dealt with in.Tata Iron and Steel Company

v. Chief Revenue Authority, Bombay('), where Lnrd Atkinson pointed out that the order made by the High Court was merely advisory and quoted the following observations of Lord Esher in In re Knight and the Tabernacle Permanent Building Society('):-

"In the case of Ex parte County Council of Kent, where a statute provided that a case might be stated

. ~1) 50 I.A. 'J12. 12> (1892] 2 Q. B. 613, at 617,

for the decision of the Court it was held that though !950 the language might prima facie import that there has -- b h 1 f d t d t h Seth P"m<hand to et e equ1va ent o a JU gmen or or. er, ye w en 8 t d the context was looked at it appared that the juris- • '~~ •• diction of the Court appealed to was only consultative, Th• State of and that there was nothing which amounted to a mhar. judgment or order."

It cannot also be held that the order was passed .by the High Court in this case in the exercise of either original or appellate jurisdiction. It is not contended that the matter arose in the exercise of the appellate jurisdiction of the High Court, because there was no appeal before it. Nor can the matter, properly speak•

ing, be said to have arisen in the exercise of the original jurisdiction of the High Court, as was held by the Judges of the Lahore High Court in the case to which reference was made, because the proceeding did not commence in the High Court as all original suits and proceedings should commence. But the High Court acquired jurisdiction to deal with the case by virtue of an express provision of the Bihar Sales Tax Act.

The crux of the matter therefore is that the jurisdiction of the High Court was only consultative and was neither original nor appellate.

In this view, the appeal must be dismissed, though on hearing the parties, it appeared to us that the sales. tax authorities including the Commissioner and the Board of Revenue were in error in imposing a penalty upon the appellant under section IO (5) of the Act which had no application to his case, inasmuch as he had beeri registered as required by section 7 of the Act. .

In the circumstances, while dismissing the appeal, we make no order as to costs.

Appeal dismissed.

Agent for the appellant: R. C. Prasad.

Agent for the respondent: P. K. Chatterjee.

Fazl Ali J.

SETH PREMCHAND SATRAMDAS

THE STATE OF BIHAR

SAIYID FAZL ALI

MUKHERJEA

CHANDRASEKHARA AIYAR JJ

Bihar Sales Tax Act

s. 21

cl. 31

s. 21

Bihar Sales Tax Act, 1941

cl. 31

s. 21

Agarwala C.J.

Meredith

cl. 31

H. P. Sinha

S. C. Sinha

S. K. Mitra

S. L. Chibber

High Court of Judicature at Patna

section 21

Stars of Bihar Sales Tax Act, 1944

Fast Ali

section 4

Central Public vVorks Department

East Indian Railway

section 4

Section 7

section 4

19th December, 1944

21st December,

1944

8th October, 1945

10th November, 1945

B'a11Z Ali

section 10

6th June, 1946

28th May, 1947

N. Baksi

4th December, 1947

Section 21

Lahore High Court

Lahore

clause 29

Seth Premchand

Satramdas

Patna High Court

clause 31

section 66

Income-tax Act

section 21

Lahore High

Court

Patna

Clause 31

section 21

Lnrd Atkinson

Esher

Kent

section 7

R. C. Prasad

P. K. Chatterjee

Fazl Ali


Oot. l't,

SUPREME COURT REPORTS [1950]

SRI RANGA NILAYAM RAMA KRISHNA RAO

KANDOKOlU CHELLA Y AMMA alias MANGAMMA

AND ANOTHER

[SAIYID FAZL Au, MUKHERJEA and

(HANDRASEKHARA AIYAR JJ.]

Madras Agriculturists' Relief Act (IV of 1935), ss. 3 (D), 8, 10, 19-Sale of estate in execution of decree-Whether cwner ceases to be " Agriculturist " pending application to set aside sale- Applications to set aside sale and for relief under Act-Maintainability-Order confirming sale and granting relief-Legality-0.P.G. (1908), O.XXI, r. 90-Execution .ale-Appeal against order refusing to set aside sale-When 8"le becomes absolute and title passes-

Receiver-Appointment of receiver, effect of.

In execution of a, decree .obtained on a mortgage a village owned by the mortgagor which was included in the niortgage was sold by the court on the 6th July 1935 and it was purchased by the mortgagee. An application by the mortgagor under Q.XXI1 r. 90, C.P.O., for setting aside the sale for irregularities as dismissed, the sale was confirmed and full sittisfaction of the decree was recorded, on the 6tb March 1943.

A few days afterwards the mort gager and his adopted son ma.de an application under s. 19 of the Madras Agriculturists' Relief Act, 1938, praying for relief unrler the

~A..ct, and, as this application also was dismissed they preferred t\vo appeals, one from the order dismissing this application and the other against the order of 6th March 1943 refusing to set aside the sale. The High Court of Madras held that, as the mortgagor's village had been sold be did not come within the purview of

cl. (D) of the proviso to s- 3 of the Madras Agriculturists' Relief Act and so be was entitled to claim relief under t.be Act and the debt stcod discharged under the provision of the Act, but the sale was not liable to be set aside ; and in accordrtnce with this judgment the decree-bolder wa• directed to pay the amount !o1 wbicb the property had been sold with interest thereon: Held per F.AZL ALI and MUKHERJEA JJ.-(i) that tbe conclusions arl'ived at by the High Court were selfcontra:lictory beca.uso if the ea.le was effective on the date it was held or confirmed, the decree was also satisfied on that dais and the judgment- . debtors were no longer entitled to invoke the provisions of the Act ; (ii) that the High Court was not justified in law in deciding the appeal on the footing that the judgment-debtors ceased to be owners of the village from the date of sale and on that account were not hit by cl. \D) of the proviso to s. 3 of the Act inasmuch as when an appeal is preferred from an order rejecting an appli cation under O.XXI, r. 90, C.P.C., to set aside an execution sale, the sale does not bscome absolute until the matter is finally decided by the appellate court.

Per CHANDRASEKHAI<A AIYAR J.-After the execution sale in !950 1935 the only interest which the ji; dgment-debtors had in the village was to have the sale set aside under the relevant pro- Sri Ratiga. visions of the Civil Procedure Code and this interest, not being Ntlayani &ma an interest contemplated by s. 3 (iii (a) & (b) and s. 19 (1) of the Krishna Ra.o Act, they were not "agriculturists" and were not entitled to any v. relief under the Act.

Kandokori Held also, per FAZL ALI and MUKHERJEA JJ.~A person does Oh, llayamma not cease to be a land-holder of an estate within the meaning of and Another.

cl. (D) to the proviso to s. 3 of the Act merely because the estate is placed in the hands of a receiver.

Bhawani K<mwar v. Mathurn Pra•ad Singh (I.L.R. 40 Cal. 89) and Chandramani Shaha v. A.narja" Bibi \l.L.R. 61 Cal. 945)

rferred to.

Judgment of the Madras High Court reversed.

APPELLATE JuRISDICTION: Civil Appeals Nos. 56 and 57 of 1949. Appeals from the orders of the High Court of Judicature at Madras (\N'adsworth and Patanjali • Sastri JJ.) dated 24th October, 1945, in A.A.O. , Nos. 372 of 1943 and 634 of 1944 which were appeals from the orders of the Subordinate Judge of Ellore in E.A. No. 440 of 1937 and C.M.P. No. 152 of 1943 in 0.5. No. 87 of 1923.

P. Somasundaram (V. V. Chaudhry, with him) for the appellant.

V. Rangachari (K. Mangachari, with him) for the respondents.

1950. October 17.

The Court delivered judgment as follows.

F AZL Au J. -These appeals arise out of an execution proceeding, and the main point to be decided in them is what is the effect of certain provisions of the Madras Agriculturists Relief Act (Madras Act IV of 1938, which will hereinafter be referred to as "the Madras Act"), on the rights of the parties. How this point arises will be clear from a brief statement of the facts of the case.

It appears that in 1908, one Veeresalingam, the husband of the first respondent, borrowed a sum of Rs. 9,000 from one Sitharamayya, and executed a mortgage bond in his favour. Subsequently a suit was

Fa11l Ali J.

1950 instituted by the mortgagee to enforce the mortgage and a final decree in that suit was passed on the 19th , Sri Ranga . August, 1926. Thereafter, on the 28th October, 1931,

N.tayam Ra.ma the decree-holder applied for the execution of the decree Krishna Rao

v. by.the sale of the mortgaged property. In 1933, the Kandakari decree-holder transferred the decree to one Sobhanadri, Oh•llayamm• after whose death his son, the appellant before us, was

and Anather. brought on the record as his legal representative in the

Faz! Ali J. execution proceedings. Several years before the assignment of the decree, Veeresalingam, the defendant, had died and his widow, the firstrespondent, was therefore brought on the record as his legal representative. On the 6th July, 1935, two items of property were sold in execution of the decree and purchased by the decreeholder, these being:-(!) a village called Tedlam in West Godavari District ; and (2) 4 acres and 64 cents oJ land in Madepalli village. The first property was • sold for Rs. 21,000 and the second for Rs. 1,025. As, however, the amount due under the decree was only _about Rs. 17,860 and odd, the sale of the second property was subsequently set aside and the decree-holder . deposited into Court the excess amount of about

Rs. 3,000 and odd after setting off the decretal amount against the price of the first item of property. On the 5th August, 1935, the first respondent filed an application under Order XXI, rule 90, and section 47 of the Code of Civil Procedure, to set aside the sale held in July, 1935, alleging certain. irregularities in the conduct of the sale. That application was after several years heard by the Subordinate Judge of Ellore, who by his order dated the 6th March, 1943, dismissed it and directed the sale of the first property to be confirmed and full satisfaction of the decree to be entered. After about 12 day~. i.e., on the 18th March, 1943, the first respondent and the second respondent, who had been adopted by the former on the 12th March, 1936, under the will of her husband and was subsequently brought on record, filed an application under section 19 of the Madras Act praying for certain reliefs under that Act.

This application was dismissed on the 22nd March, 1943.

Subsequently, two appeals were filed on behalf

of the respondents (who will hereinafter be sometimes 19~0 referred to as judgment-debtors), one against the order . . refusing to set aside the sale under Order XXI, rule N.~" Ra';:" . 90 of the Civil Procedure Code, and the other against ~;;,~:. ;';; the order dismissing the application under the Madras •- Act.

These appeals were heard together by two learned Kandol.m Judges of the Madras High Court and they took the Chellayamma

view that the judgment-debtors' application under the and .l.nother.

Madras Act was maintainable notwithstanding the FazlAliJ. fact that the sale had been confirmed and full satisfaction of the decree recorded, and remitted the case to the trial Court for a finding on the following questions, namely- (!) whether the applicants were agriculturists; and

(2) if so, what would be the result of applying the provisions of Madras Act IV of 1938 to the decretal debt against them?

So far as regards the judgment-debtors' appeal against the order dismissing their application under Order XXI, rule 90, the learned Judges were inclined to agree with the trial Court that the sale should stand but declined to pass final orders in the appeal on the ground that "it would seriously prejudice the judg. ment-debtors in the connected application for relief under section 19 of the Madras Act IV of 1938."

The Subordinate .T udge answered the questions referred to him by the High Court on remand as follows:-

(1) The judgment-debtors were not agriculturists and were not therefore entitled to the benefits of the Madras Act ; and

(2) If thy were agriculturists, they were not liable to P~Y. anythmg under the decree, as, in view of the prov1s10ns of the Act, the debt stood discharged on the date of sale. · When however the matter came up before the learned Judges of the High Court, they reversed the first finding of the trial. Cour! and held that the judgmentdebtors were agncultunsts within the meaning of th1.;

....

Sri Ranga Nilnyam Rama

Kri1htta Rao v.

KtJndokori Ohe1layatnmtl

and A'iother

Faal Ali J.

Act, and that the debt stood discharged in view of section 8 (2) of the Act.

At the same time, they held that the sale was not liable to be set aside, and in this view dismissed one of the appeals and allowed the other. Then followed certain proceedings to which it would have been unnecessary to refer but for the fact that the judgment-debtors have attempted to rely on them in support of one of their preliminary objections to the maintainability of these appeals.

It appears that on the next day after the judgment of the High Court was delivered in the two appeals, counsel for the respondents wrote a letter to the Registrar of the High Court to direct the posting of the two cases 'for being mentioned' before the Court in order to obtain necessary directions consequent on the orders passed by it in the appeals. This letter was not placed before the learned Judges until the judgment had been signed by them and accordingly the judgment-debtors filed two petitions, one being a review petition to the. High Court and the other being a petition to the trial Court praying "that the decreeholder may be ordered to pay to the petitioners the purchase money of Rs. 21,000 with interest thereon at 6 per cent. per annum from the date of sale till the date of payment." The trial Court dismissed the latter petition on the ground that it was not maintainable, and the judgment-debtors tiled an appeal against the order.

The appeal as well as the review petition of the judgment debtors were heard together by the learned Judges who directed the decree-holder's counsel to elect whether his client would deposit the purchase money into Court or have the sale set aside.

The decree-holder applied for a short adjournment and ultimately on the 15th November, 1946, his counsel stated that his client wished to retain the property which he had purchased and to pay the purchase money into Court. Thereupon, he was directed to pay the sum of Rs. 21,000 together with interest within 3 months from that date.

Subsequently, the appellant (decree.holder) having obtained leave to appeal from the High Court preferred

these appeals before us. It may be stated here that 1950 along with the application for leave to appeal, the appellant had filed an application for excusing the ., 1 8'' RonRg• d 1 . fil' h f l' , h' h .,, ayam •ma e ay m mg t e ormer app 1cat10n w IC he account- Kri.h,.a Rao ed for mainly by referring to the proceeditlgs for the v. review of the judgments in the previous appeals to the Kandokori High Court. This application was granted and the CheJln11•mm• delay was condoned. ""d A>wlher, As has been already stated, the main point arising Fazl dZ. J, in these appeals relates to the effect of the Madras Act upon this litigation. That Act was passed and came into effect in 1938, while the execution proceedings were still continuing. It will be recalled that the sale took place on the 6th July, 1935; and the application for setting it aside was not disposed of until the 6th March, 1943.

But, strangely enough, the judgmentdebtors did not apply fur any relief under the Madras Act during this period, and they made their applica. tion only after the sale had been confirmed and satisfaction of the decree had been entered. How far this belated application affects the right claimed by the judgment-debtors under the Act is one of the questions raised in these appeals, and I shall deal with it after referring to the material provisions of the Act and the findings of the High Court which have given rise to several debatable points.

The sections of the Act which are material for the purpose of these appeals are sections 3, 8 and 19. Section 3 defines an agriculturist and has a proviso stating that in certain cases a person shall not be deemed to be an agriculturist. The relevant clause of this pro~ visa, to which I shall also have to advert later, is clause (D) which runs thus:-

"Provided that a person shall not be deemed to be an 'agriculturist' if he -

(D) is a landholder of an estate under the Madras Estates Land Act, 1908, or of a share or portion thereof in respect of which estate, share or portion any sum exceed!ng Rs. 50~ is paid as. peshkash or any sum exceedmg Rs. 100 1s paid as quit-rent, jodi, kattubadi,

1950 poruppu or the like or is a janmi under the Malabar Tenancy Act, 1929, who pays any sum exceeding Sri Ra•ga Rs. 500 as land revenue to the Provincial Govern- Nilayrim R11ma . ent " Kri11hna Rio tn v.

The precise question which is said to arise with Kandokori reference to this provision is whether by reason of being Ohe!layamma the owners of village Tedlam, the judgment-debtors

••• Another. should be held to be not entitled to relief under the

Fa•l Ali J.

Act. The other material sections 8 and 19 run as follows:-

"8. Debts incurred before the 1st October, 1932, shall be scaled down in the manner mentioned hereunder, namely:-

(1) All interest outstanding on the 1st October, 1937, in favour of any creditor of an agriculturist whether the same be payable under law, custom or contract or under a decree of Court and whether the debt or other obligation has ripened into a decree or not, shall be deemed to be discharged, and only the principal or such portion thereof as may be outstanding shall be deemed to be the amount repayable by the agriculturist on that date.

(2) Where an agriculturist has paid to any creditor twice the amount of the principal whether by way of principal or interest or both, such debt including the principal, shall be deemed to be wholly discharged.

(3) Where the sums repaid by way of principal or interest or both fall short of t\vice the amount of the principal, such amount only as would make up this shortage, or the principal amount or such portion of the principal amount as is outstanding, whichever is smaller, shall be repayable.

(4) Subject to the provisions of -sections 22 to 25, nothing contained in sub-sections (1), (2) and (3) shall be deemed to require the creditor to refund any sum which has been paid to him, or to increase the liability of a debtor to pay any sum in excess of the arp.ount which would have been payable by him if this Act had not been passed. -

S.C.R.

SUPREME COURT REPORTS 813 - Explanation.-Where a debt has been renewed or

19M included in a fresh document in favour of the same cred!tor, the principal originally advanced by the N•l~~~a~~:a creditor together with such sums, if any, as have been Krishna Rao subsequently advanced as principal shall alone be v. treate<; t as the principal sum repayable by the agri- Kandokori cu]tunst under this section.

Ch•1layamma

and Another.

19. Where before the commencement of this Act, . a Court has passed a decree fo.r the repayment of a Fa•I ..11; J. debt, it shall, on the application of any judgmrntdebtor who is an agriculturist or in respect of a Hindu joint family debt, on the application of any member of the family whether or not he is the judgment.debtor or on the application of the decree-holder, apply the provisions of this Act to such decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, amend the decree accordingly or enter satisfaction, as the case may be: Provided that all payments made or amounts recovered, whether before or after the commencement of this Act, in respect of any such decree shall first be applied in payment of all costs as originally decreed to the creditor."

These sections are material, because in the present case the judgment debtors asked the decree to be amended under section 19 of the Act and they were held to be entitled to relief under section 8.

Having referred to the relevant provisions of the Act, it becomes necessary now to state the main findings of the High Court upon which the decision of this appeal will turn. These findings are-

(1) that tfie sale of Tedlam village, which was held on the 6th July, 1935, and confirmed on the 6th March, 19-13, was a good sale;

(2) that by this sale, the title to the Tedi am village passed to the de'cree-holder, and in hearing the appeal the High Court was justified in proceeding on the footing that the judgment-debtors having ceased to be the owners of Tedlam village after its sale, were not

io~

Sri Ranga Nilaylun Rama

K•1shna Rao v.

Kandokori CJu1llay11nuna

and Anothtr.

Faal Ali J.

hit by clause (D) of the proviso to section 3 of the Act ; and

(3) that the decree had been satisfied at the date of the sale and the decree-holder was liable to repay to the judgment-debtors the full price of the property which was sold.

The main contentions directed against the conclusions arrived at by the High Court are: firstly, that they are self-contradictory, because if the sale was an effective sale on the date it was held or confirmed, the decree was also atisfied on that date and the juflgmentdebtors were no longer entitled to invoke the provisions of the Madras Act; and secondly, that the view taken by the learned Judges of the High Court that notwithstanding the appeal against the order ref using to set aside the sale they could proceed on the footing that the judgment-debtors had ceased to be the owners of Tedlam village on the date of the sale was unsound in law. .

I will first deal with the second point which appears to me to require serious consideration. The High Court has in my opinion rightly proceeded on the footing that the ownership of Tedlam village would bring the judgment-flebtors within the mischief of clause (D} of the proviso to section 3 of the Act, and would disentitle them to any relief thereunder. This view was contested before us on behalf of the judgmentdebtors on two grounds :-(1) that the grant in favour of the ancestor of the judgment-debtors did not comprise a whole inam village and what they owned was therefore .not an estate under the Madras Estates Land Act (Madras Act I of 1908) ; 12) that on the date of the application, the judgment-debtors were not landholders of village Tedlam because the village was in the possession of a receiver since 1st February, 1937, and the latter was in law the landholder on the crucial date.

None of these contentions however appears to me to have any force. The first contention was sought to be supported by Exhibit P-1 which is a register of inams and which shows that poramboke or waste lands to the

xtent of 599 acres had to be deducted from the area

...

of the inam. The point however has been dealt with 1950 very fully and clearly by the learned Subordinate s . R Judge, who has rightly pointed out that it has no force N<l;; • .:'i."...

in view of the Madras Estates Land (Amendment). Act, Krihna &c 1945 [Madras Act No. II of 1945). The second point v. "is equally unsubstantial, because it is well settled that K•ndokori • the owner of a property does not cease to be its owner Oh•llayamm•

and A.nothr. merely because it i::; placed in the hands of a receiver.

The true position is that the receiver represents the F<Ul Ali J. real owner whoever he may be, and the true owner does not by themere appointment of a receiver cease to be a landholder under the Madras Estates Lan!i Act.

I will now revert to the crucial question in the case, viz., whether the learned Judges of the High Court were justified in Jaw in deciding the appeal on the footing that the judgment-(lebtors had ceased to be the owners of Tedlam village and on that account they were not hit by clause (D) . of the proviso to section 3 of the Madras Act. At this stage, it will be useful to refer to certain provisions of the Civil Procedure Code which directly bear on the question as to when title to immovable property which is sold in execution of a decree is deemed to pass to the purchaser. One of the provisions is Order XXI, rule 92, which provides that "where no application is made under rule 89, rule 90 or rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall become absolute.'' The second relevant provision is section 65 which runs thus:-

"Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute."

In !Jhawani Kunwar v. Mathura Prasad Singh(1) the quest10n as to when a mortgagee who has purchased certain villages in execution of the decree acquired title to the properties purchased by him directly arose for consideration, and the Privy Council rightly pointed

(11 T.L.B. 40 C•J. S9.

Sri Ranga Nilayam Rama

Krishna Rao v. Kandokori Chellayamma

and Another.

Fasl Ali J.

out that "the sale in execution of the mortgage decree took effect from the actual date of the sale aod not from its confirmation." In a simple case, the provision$ cited above should settle the controversy, but, in the present case, the matter has been complicated on account of the appeal against the order refusing to set aside the sale under Order XXI, rule 90. In such a case, generally speaking, the true position seems to be that there is no finality until the litigation is finally determined by the appellate Court. This principle has been recognized in a number of cases, but it will be enough to cite Chandramani Shaha v. Anarjan Bibi('). The headnote of that case runs as follows:-

"Where a Subordinate Judge has disallowed an application under Order XXI, rule 90, to set aside a sale in execution, and has made an order under rule 92 (!)confirming the sale, and an appeal from disallowance has been dismissed by the :fligh Court, the three years' period provided by the Indian Limitation Act, 1908, Schedule I, article 180, for an application under Order XXI, rule 95. by the purchaser for delivery of possession runs from tbe date of the order on appeal; the High Court having under the Code of Civil Procedure, 1908, the same powers as the Subordinate Judge, the 'time when the sale becomes absolute', for the purpose of article 180 is when the High Court disposes of the appeal."

Under article 180 of the Indian Limitation Act, the period of limitation runs "from the date when the sale becomes absolute." If we give a narrow and literal meaning to these words, the period of limita. tion should be held to run from the date when the original Court of execution confirms the sale. But, as was pointed out by the Privy Council, the High Court as an appellate Court had the same powers as the trial Court and it is only when the appeal was dismissed by the High Court that the order of the trial Court confirming the sale became absolute. Till the decision of the appellate Court, no finality was attached to the order confirming the sale.

ill l.L.R. 61 Cal, 945,

,.. .

It is clear that in 'this case the same rule would 1960 apply to the order recording satisfaction of the decree . and to the order confirming the sale. If the order " 8

1 " RanRga d. . f . f h fi 1 d "'ayam ama recor mg satis action o t e decree was not na an Krishna Rao remained an inchoate order until the appeal was v. decided, the order confirming the sale would have the Kandokori same inchoate character. This position seems to have Chellayamma

f . and .4.nothr. been ully conceded m the statement of thelf case filed on behalf of the respondents in this Court.

Fazldli J.

It is quite clear that in this case the learned Judges of the Hii:;-h Court have taken up an inconsistent position. As I have already stated, they have held, for the purpose of allowing one of the appeals, that the judgment.debtors were not hit by clause (D) of the proviso to section 3 of the Act because they ceased to • be the owners of Tedlam village at the date of the sale in 1935. If this conclusion is correct, it must follow as a matter of logic that the decree was completely satisfied on the date of the sale, because the sale fetched a larger amount than what was payable under the decree an<l the excess amount was deposited by the decree-holder in Court. The sale and satisfaction must go together and if finality is to be attached to the sale it should have been held to attach also to the order recording satisfaction of the decree. It seems clear to me that if the decree had ceased to exist, no relief could be claimed by the judgment-debtors under the Madras Act. On the other hand, if the appeal had to be decided on the footing that the order recording satisfaction of the decree was not final, the same approach should have been made in regard to the effect of the sale. It is also clear that if the decree was satisfied on the date of sale by the application of the provisions of the Act, the sale could not stand, because how co'uld the property be sold in execution of a decree which had been already satisfied. Yet, notwithstanding the fact that notliing was due under the decree, the High Court has held that the sale was a good sale and was to stand. The correct approach to the case would have been to assume for the purpose of

h~ iiVVev.i~ tha.t neither of the orders passed by the

1000 Subordinate Judge was final.

On that view, the ,. Ron . appeals to the High Court could not have bt; en decided

.,. 8

• Rga on the footing that the judgment-debtors had ceased ,,, ayam iima I d h f Krishna Rao to be the owners of Ted am property an were t ere ore v. not hit by clause (D) of the proviso to section 3 of the Ka•doko,; Madras Act. In my opinion, the judgment of the Oh•ll•yamma High Court cannot be sustained, and the appeals will and Another have to be allowed.

li'••I Ali J.

I will now deal very briefly with two preliminary objections raised on behalf of the respondents. The first objection is that the application for leave to appeal to his Majesty in Council against the order of the High Court was barred by limitation, inasmuch as the reasons stated in the affidavit filed by the appel- ,. ]ant in the High Court in support of his application for excusing delay do not constitute sufficient reason within the meaning of section 5 of the Limitation Act.

The answer to this objection will be found in the facts which have been already narrated. The delay was caused mainly by reason of the review of the order of the High Court and the High Court considered that there was sufficient reason for condoning the delay.

This Court cannot override the discretion exercised by the High Court and the matter cannot be reopened in these appeals. 1he second objection is based on the fact that the decree-holder was given a choice by the High Court to elect whether he would deposit the purchase money . or have the sale set aside, and his counsel told the learned Judges on the 15th November, 1946, that his client wished to retainthe property which he had purchased and pay the purchase money in cash. It is contended that in view of this statement it was not open to the appellant to contend that he need not pay any amount to the judgmentdebtors.

This objection also is entirely devoid of any substance, because there is nothing on record to show that the appellant has consented to be bound by the order of the High Court and waived his right to appeal against it by reason of the election.

The learned counsel for the respondents also contended that the sale should have been set aside by the

High Court because the permissi0n given to the decree. 19;0 holder on the 16th February, 1934, to bid and set off 8 . Ii the decretal am?unt against th~ purchase price was con- N.z:;.,:n;:,.. fined to an earher sale and did not extend to the sale Krishna Rao which took place on the 16th March, 1935, after the v. upset price which had been originally fixed was Kandokori reduced. Personally, I am inclined to hold that the Chellayamma · b and Another. perm1ss10n covered the sale m question, ut in any case it is difficult to hold on the facts stated that Fa•l Ali J. there was any such material. irreg11Jarity as would vitiate the sale. The precise argument which is put forward here was advanced in the Courts below but it did not find favour either with the Subordinate Judge or with the High Court.

Besides, the respondents cannot raise the point in these appeals because they have filed no appeal against the order of the High Court upholding the sale, In these circumstances, I would al!o\v the appeals, set aside the orders of the High Court and restore the order of the learned Subordinate Judge. There will however be no order as to costs in these appeals.

MUKHERJEA J.-I concur in the judgment just now Mukherj•a .1 delivered by my learned brother, Fazl Ali J., and there is nothing further which I can usefully add.

CHANDRASEKHARA AIYAR ].-The facts which havechandrosekhara given rise to these appeafs and the questions for Aiyar J. decision have been stated in the judgment just now pronounced by my learned brother Faz! Ali ]. I wish to add only a few words on the main contention advanced for the respondents by their learned Advocate, Mr. V. Rangachari.

If by reason of the confirmation of sale and satisfaction of the decree having been entered up, the title to the village had passed indefeasibly to the decreeholder, there was no longer any decree or decree debt to be scaled down. If, however, the title did not pass, because it was still open to the respondents to attack the Court sale under Order XXI, rule 90, they were landholders of the villae and, as such, they would

t9so come within the scope of proviso (D) to section 3 of the .-- Madras Agriculturists' Relief Act, 1938, which enacts 8" Ra•Rga that a landholder who holds a village paying more than Ndayam una OO • d · lt Kri•h•• Rao Rs. 1 as qmt rent or JO I 1s not an agncu unst v. within the meaning of the Act.

Kandokori The apparent inconsistency in the view taken by Oh•llayamma the Hieh Court was recognised, if not conceded, by the and Another. •, learned counsel. In one view, there was no longer any Ohandrasekh.ra decree in respect of which the Agriculturists' Relief Act

Aiyar J. could operate; and in £he other view, the respondents could not take advantage of the Act, as their ownership of the village precluded them. Faced with this dilemma, Mr. Rangachari urged a somewhat ingenious argument.

He contended that though the title passed to the decree.holder on the confirmation of sale and became vested in him from the date of the sale, the respodents could still be regarded as having an interest in the village, as the sale was open or liable to challenge and the title of the decree-holder was inchoate or incomplete.

There is, however, really no support for this position.

On confirmation, the title of the decree-holder became absolute or complete. If the sale was set aside, the title would re vest in the judgment-debtor. There is nothing like an equitable title in the decree-holder which could be recognised for certain purposes and not recognised for others.

Under the Madras Act; "agriculturist" means "a person who has a saleable interest in any agricultural or horticultural land or one who holds interest in such land under a landholder as a tenant, ryot or undertenure.holder." Section 10, sub-clause (i) of the Act provides that the right conferrerl. on an agriculturist to have a debt scaled down will not apply to any person who, though an " agriculturist" as defined in the Act, dirl not on 1-10-1937 hoU an interest in or a lease or sub-lease of any land. After the sale in 1935, the only interest which the judgment-debtors had in the village was to have the sale set aside, under the relevant provisions of the Civil Procedure Code. This interest is not the interest contemplated by section 3, s11b-clause (ii) (a) & (b) of the 1\ct which speaks of a

saleable interest or interest as a tenant, ryot or under- 1950 tenure holder.

S.ri Rt'lnga I agree in the conclusion reached by my learned N.tayam Rama brother.

Kdshna Rao Appeals allowed.

Agent for the appellant: M .S. Krishnamoorthi Sastri.

Agent for the respondents: M.S.K. Aiyangar.

MOHINDEI<. SINGH

THE STATE

[SAIYID FAZL Au, MuKHERJEA and

(HANDRASEKHARA AIYAR JJ.J

Criminal trial-Jfiirder--I11juries ca.'l, tSed by lethal 1l'eapo1zs- Du.ty of p1oserution-Ini1Jortance of c.rpert evidence-Duty to prove whufe case-Evidence 1v.1.ntin'/ o, i mrttPrial point-Inipropriety of contJirtion-Proof of :ilibi-St, inilnrd of proof-S'llpreme Cotrt Criminal appea, l-Interfcrcn::e-Practicp_.

In :t case where death is due to injuries or woun1ls caused by a leth:tl weapon, it has always been considered to be the duty of the prosecution to pr JVC by Expert cvii!ence th at it 'vas like]y or at least possible for the injuries to have been caused with the weapon V•tith \:vhich, and in the manner in which, they are allegerl to have been caused.

Where in a case of n1urder, the prosecut!on case was that the accuser] shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that tho injuries were caused by a gun, :tnd the nature of the irijuries, vas also such that the shots must have been fired by more than one person and not by one person only, and. the prosecLio:i hafl no evidence to sho\V that another person a!Ho shot, and the High Court, though realising that thel'e was thuq :t gap in the prosecution evidence, convicted the accusec.l placing reliance on the oral evidence of 3 wiGnesses which was not disinterested: Held, that the present case fell w'thin the rule laid down in Pritam Sin1h v. Th• State ([1950] 8.0.R. 45:3) iuasmuch as the appellant had been convicted notwithstaniing the fa, t that evidence '\Vas wo.nting on a most materi'.11 parG of the prosecution case, and the conviction could not therefore be upheld,

10~

Kandrikori Ghtllayanima

and Anothe,..

Oct, 17,

MUKHERJEA

HANDRASEKHARA AIYAR JJ.

ss. 3

6tb March 1943

s. 19

Relief Act, 1938

High Court of Madras

MUKHERJEA

s. 3

C.P.C

CHANDRASEKHAI

A AIYAR

s. 3

s. 19

FAZL ALI

s. 3

Madras High Court

Patanjali

P. Somasundaram

V. V. Chaudhry

V. Rangachari

K. Mangachari

F AZL

Madras Act IV of 1938

Veeresalingam

Sitharamayya

19th , Sri

Ranga

28th October, 1931

N.tayam Ra.ma

Krishna Rao

Sobhanadri

Faz! Ali

Veeresalingam

6th July, 1935

Tedlam

Godavari District

Madepalli village

5th August, 1935

section 47

the Code of Civil Procedure

Subordinate Judge of Ellore

6th March, 1943

18th March, 1943

12th March, 1936

section 19

22nd March, 1943

Madras Act IV of 1938

section 19

Madras Act IV of 1938

Faal Ali

section 8

15th November, 1946

Kandokori High Court

sections 3, 8 and 19

Section 3

Madras Estates Land Act, 1908

Malabar Tenancy Act, 1929

sections 8 and 19

1st October, 1932

1st October, 1937

sections 22 to 25

Code of Civil Procedure, 1908

section 19

section 8

Tedlam village

6th March, 19-13

Ranga Nilaylun Rama

section 3

section 3

Madras Act I of 1908

1st February, 1937

K•ndokori

section 3

section 65

Ranga Nilayam Rama

Fasl Ali

Indian Limitation Act, 1908

Schedule I

article 180

Code of Civil Procedure, 1908

article 180

article 180

Limitation Act

Fazldli

section 3

section 3

Ali

section 5

Limitation Act

16th March, 1935

Fa•l Ali

Fazl Ali

CHANDRASEKHARA AIYAR

Aiyar

section 3

Relief Act, 1938

Oh•llayamma

Rangachari

Section 10

section 3

N.tayam Rama

Kdshna Rao

M .S. Krishnamoorthi Sastri

M.S.K. Aiyangar

MOHINDEI

Kandrikori Ghtllayanima


S.C.R.

SUPREME COURT REPORTS 821

saleable interest or interest as a tenant, ryot or under- 1950 tenure holder.

S.ri Rt'lnga I agree in the conclusion reached by my learned N.tayam Rama brother.

Kdshna Rao Appeals allowed.

Agent for the appellant: M .S. Krishnamoorthi Sastri.

Agent for the respondents: M.S.K. Aiyangar.

MOHINDEI<. SINGH

THE STATE

[SAIYID FAZL Au, MuKHERJEA and

(HANDRASEKHARA AIYAR JJ.J

Criminal trial-Jfiirder--I11juries ca.'l, tSed by lethal 1l'eapo1zs- Du.ty of p1oserution-Ini1Jortance of c.rpert evidence-Duty to prove whufe case-Evidence 1v.1.ntin'/ o, i mrttPrial point-Inipropriety of contJirtion-Proof of :ilibi-St, inilnrd of proof-S'llpreme Cotrt Criminal appea, l-Interfcrcn::e-Practicp_.

In :t case where death is due to injuries or woun1ls caused by a leth:tl weapon, it has always been considered to be the duty of the prosecution to pr JVC by Expert cvii!ence th at it 'vas like]y or at least possible for the injuries to have been caused with the weapon V•tith \:vhich, and in the manner in which, they are allegerl to have been caused.

Where in a case of n1urder, the prosecut!on case was that the accuser] shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that tho injuries were caused by a gun, :tnd the nature of the irijuries, vas also such that the shots must have been fired by more than one person and not by one person only, and. the prosecLio:i hafl no evidence to sho\V that another person a!Ho shot, and the High Court, though realising that thel'e was thuq :t gap in the prosecution evidence, convicted the accusec.l placing reliance on the oral evidence of 3 wiGnesses which was not disinterested: Held, that the present case fell w'thin the rule laid down in Pritam Sin1h v. Th• State ([1950] 8.0.R. 45:3) iuasmuch as the appellant had been convicted notwithstaniing the fa, t that evidence '\Vas wo.nting on a most materi'.11 parG of the prosecution case, and the conviction could not therefore be upheld,

10~

Kandrikori Ghtllayanima

and Anothe,..

Oct, 17,

19~0 Held also, that the stndard of proof which is required in regard to the plea of alibi must be tbs same as the stundard Mohinder S1ngh which is applied to the prosecution evidence and in both cases it v. should be a reasonable standard.

Th• 8"''' APPELLATE JURISDICTION: Criminal Appeal No. 10 of 1950.

Appeal by special leave from a judgment of the High Court of Punjab (Falshaw and Soni JJ.) dated 30th December, 1949, upholding the conviction of the appellant under ss. 302 and 307 read with s. 34 of the Indian Penal Code and confirming the sentence of death passed against him by the Sessions Judge of Ferozepore on the 20th July, 1949, in Criminal Appeal Case No. 325 of 1949. ]ai Gopal Sethi (R. L. Kohli, with him) for the appellant.

B. K. Khanna, Advocate-General of the Punjab, (S. M. Sikri, with him) for the respondent.

1950. October 17. The judgment of the court was delivered by

Fall Ah J.

FAZL Au J.-This is an appeal by special leave from the judgment of the High Court of Punjab upholding the conviction of the appellant, Mohinder Singh, under sections 302 and 307 read with section 34 of the Indian Penal Code, and confirming the sentence of death passed against him by the Sessions Judge of Ferozepore.

The case for the prosecution which has been substantially accepted by the trial Judge and the High Court is briefly as follows.

Sometime in January, 1949, one Bachittar Singh; brother of Dalip Singh who is said to have been murdered, lodged a complaint before the Naib Tehsildar at Zira to the effect that a tree belonging to him had been cut by 7 persons including Mohinder Singh, the appellant. On the 28th February, 1949, which was the date fixed for the hearing of the case before the Naib Tehsildar, Jita Singh and Dalip Singh, the two brothers of Bachittar Singh, were attacked by the appellant and one Gumam Singh,

'I. lad of 17, near a Gurdwara at about mid-day, when

... -

they were returning from their field.

Jita Singh was llllilf then carrying a load of fodder on his head while Dahp , - , S' h h d' ' kl ' h' I d J't s h h Mohtnder 81 .. flh wg a sic es m 1s rnn . 1 a wg was t e first to be attacked near a tailor's shop by Mohinder The tat" Singh who fired at him from behind hitting him on the neck whereupon he fell down together with the Fail J.li J. bundle of fodder.

Dalip Singh, who was following Jita Singh, then ran backwards and he was chased' by Gurnam Singh round the outer boundary of a tank which was close by, Mohinder Singh ran on the other side of the tank in the opposite direction and confronted him and shot him with a gun on the chest whereupon he fell down. Meanwhile, Gurnam Singh had also reached the spot and he fired with his rifle from a distance of about 4 or 5 feet near about Dalip Singh's ear while he was lying sideways. The injuries proved fatal and Dalip Singh died on the spot.

The same day at 3 p, m .. J ita Singh went to the police station at Dharamkot, which is at a distance of 3 miles from village Augar, where the occurrence had taken place, and lodged a first information report, charging Mohinder Singh, with having caused injury to him, and Mohinder Singh and Gurnam Singh with the murder of Dalip Singh; and the police after investigating the case sent up a charge-sheet against the two accused persons, Thereafter they were tried by the Sessions Judge of Ferozepore under sections 302 and 307 read with section 34 of the Indian Penal Code.

The appellant was sentenced to death under section 302 and Gurnam Singh was sentenced to transportation for life under that section in view of his youth. They were also sentenced to 3 years' rigorous imprisonment each under section 307 read with section 34 of the Indian Penal Code.

It appears that Dalip Singh had 6 injuries altogether which are described by the doctor who performed the post-mortem on his body in these words; -

" I. An irregularly round gun shot wound on the left tern poral region, I'' diameter. The wound is 2!" behind outer canthus of left eye, its upper portion is at a level with the top of the pinna of the left ear,

' ' .,,

1950 behind it commences at the cartilages of the ear which arc broken.

Brain is visible in the gap of the wound.

Mohind~ Srngh An area 4" x 4" is blackened, the wound being situ-

Th• Stat•. ated in the middle of this area.

Fazl Ali J.

2. A gun shot wound f' x f' on the back of right mastoid region, upper end of the wound is I" behind the root of the right ear.

Direction is vertically obli"que. On dissection the left temporal bone under in jury No. 1 is, hole and its petrous portion shattered.

A linear fracture extends upwards and backwards, from the hole into the left parietal and occipital bones.

After piercing through the left temporal lobe of the brain the projectile has pierced through the brainstem, and emerged out as injury No. 2, holding the mastoid region of the skull on the right side.

3. A gun shot wound i" X ~" on the left side of chest 2!'' above and behind the left nipple and !" behind the anterior axillary fold as area l" below the wound is bruised.

4. A gun shot wound !"Xi" on the right side of chest in the mid axillary line. The top of the wound being Ii" from the apex of right axilla and 4£'' above and behind the right nipple. 5.

A gun shot wound!" x ; I:" on the inner aspect of the right arm, upper end of the wound is 1 ; I:'' from the top of the anterior axillary fold. 6.

A gun shot wound i" x !" on the front of the right arm.

Its upper end being 2!'' from the top of the anterior axillary fold. Its distance from injury No. 5 being l" and it is inter-connected with injury No. 5 under the skin."

The doctor has stated in his evidence that in all two projectiles appeared to have hit Dalip Singh, and injuries Nos. 1 and 2 were caused by one of them, injury No. 1 being the wound of entrance and injury No. 2 being the wound of exit. \Vith regard to the other 4 injuries, his evidence is as follows:-

"Injury No. 3 is the wound of entrance of another projectile and No. 4 is the wound of its exit. Wound

• -

• -

No. 5 is the wound of its re-entrance and wound io5o No. 6 the wound of its final exit from the body." ., 1 . a 8 . .!.':i:O iin er ingh Jita Singh had 4 slight injuries on the back of the v: neck which are said to have been caused by pellets Tize State. and two abrasions below the right elbow and right knee said to have been caused by blunt weapons.

Fazt Ali J.

It may be stated here that when the investigating police officer arrived at the scene of occurrence, he found an empty cartridge case at the place where Jita Singh is said to have been fired at, and 2 empty cartridge cases and a blood-stained cap of a cartridge case near the place where the dead body of Dalip Sin, gh was lying.

Later, when Mohinder Singh appeared before the police, he was asked whether he possessed a gun and he produced a 12 bore gun (exhibit P-16) for which he held a licence.

The gun and the empty cartridges were thereupon sent to Dr. Gayle, Director of the C.I.D. Laboratory, Phil!aur, and the opinion that he submitted may be summed up as follows :-The gun had signs of having been fired but he could not sav when it was fired last.

The cartridge cases P-10 and" P-15 could have been fired through the gun P-16, but he could not say whether they were actually fired from that particular gun or a similar gun or guns.

He did not make any experiment by firing any cartridge from the gun

P-16, nor did he compare the markings on the empty cartridges P-10 and P.15.

A notable feature of the case is that the occurrence is said to have taken place in the vicinity of a Gurdwara and some houses, but in spite of this fact, not a single person of the locality has been cited or examined as a witness by the prosecution. The whole case rests on the evidence of 3 witnesses, viz., Jita Singh, Harnam Singh and Buta Singh. Jita Singh,

who had been shot at from behind, claims to have seen the two accused firing at his brother. Harnam Singh admittedly lives at a considerable distance from the place of occurrence but has stated that he was coming from another village where he had gone to fetch some medicine for his maternal cousin, when he

rnso saw the occurrence. Buta Singh, who is a tonga -- . driver, belongs to a distant village and is somewhat Mohind"' 8••gh remotely related to Harnam Singh, and accounts for

Th• ;; at•. his presence near the scene of occurrence by saying that he had come to see Harnam Singh the evening

Fa11 Ali J. before. Harnam Singh admitted in his evidence that there was a dispute between him and .Mohinder Singh nearly a month before the occurrence about a wall, but he also says that the dispute "had been amicably settled by the panchayat". There is nothing before us to show what the award of the panchayat was and whether or not it left any ill-feeling behind.

But, on the arguments of the counsel and the apparently trivial motive for which Dalip Singh is said to have been murdered, it would appear that among the class of persons with which we are concerned petty quarrels give rise to enmity which does not die soon or easily.

After the close of prosecution evidence in the Sessions Court, the appellant was examined under section 342 of the Criminal Procedure Code, and he denied that he had fired at Jita Singh and Dalip Singh with the gun P-16 and that Gurnam Singh had fired at Dalip Singh with a rifle. He added that he was not present in village Augur at the time of the alleged occurrence but had gone to Zira to attend the Naib Tehsildar's court. To establish his plea of alibi, he examined 3 witnesses in the court of the Sessions Judge, The first witness was the Naib Tehsildar before whom Bachittar Singh had lodged the complaint, and he stated that when the case was called on the 28th February, 1949, 6 or 7persons appeared in court. He also proved an application for a taccavi loan which purports to have been filed by the appellant on the 28th February, 1949, and bears his thumb impression.

He further stated in his evidence that he had passed orders on that application on the 28th February but he did not know Mohinder Singh and therefore could not say who had produced that application before him on that date. The second witness for the appellant was his brother-in-law, Jogindar Singh, who had written the application, exhibit D-C.

He has stated that

• -

Mohinder Singh himself was present in the court of the 1950 Naib Tehsildar on the 28th February, 1949, that he Moh.-;;-;:- sngh had signed the application (exhibit D-C) and that he ' ;. ' was also one of the persons who had appeared before The Bt•t•. the Tehsildar when Bachittar Singh's case was ca!ied

out. The third defence witness is a hand-writing and Fa•! Ali J. fingerprint expert. He has proved that the application

(exhibit D-C) alleged to have been presented to the Naib Tehsildar on the 28th February bore the thumb impression of the appellant, and he has also given evidence to show that certain handwritings which he was asked to compare did not tally. The evidence given by him with regard to these handwritings has a bearing on the assertion made by the appellant in a petition filed before the committing Magistrate to the effect that the original service report of the process peon showing that the appellant also was one of the persons served for appearance before the Naib Tehsildar on the 28th February, 1949, had been suppressed and another report with forged handwriting had been substituted in its place.

Both the courts below have held that the alibi has not been proved by satisfactory evidence and that the charges against the appellant have been made out.

It seems that the learned Judges of the High Court were not at all impressed by the evidence of Dr. Goy le which they characterized as unsatisfactory and they were not also confident that the gun, exhibit P-16, had been used in causing the injuries to Dalip Singh.

This appears from the following observations made by them in their judgment : -

"The gun P-16 was identified by Jita Singh as the gun with which Mohinder Singh fired at him and Dalip Singh but he identified the gun because of a brass plate at its butt end. We have seen the gun. Its brass plate could be of no use for the identification of the gun."

Again, commenting on the nature of the injuries, the learned Judges observed as follows:--

1950 "Another difficulty which is created in this case is Mahi•;:- Si"a" the nature of injuri<.>s found on the body of Dalip v.

Singh ...... vVhat kind of bullet it was which, though it Th• State. had blackened the area where it entered the brain showing tliat it had been fired from not far away, did not Fa•l Ali J. shatter the brain we do not know. \Vhat kind of projectile it was which entered the body (which if the evidence is to be believed was fired at from a few feet at Dalip Singh) and passed through the body without shattering the inside of the chest or causing extensive damage therein is also not kn0wn. Mr.Sethi (counsel for the accused) quoted Taylor's book on medical jurisprudence and Hatcher's book on ballistics and argued that the firing must have bern from a place between 600 and 1,200 yards away in order that the projectile may pass through and through the body and not shatter it. That of cuurse pre-supposes that the barrel of the gun. using the word ' gun' in a generic sense, is grooved which causes a projectile to go forward with a rotatory motion of something under a quart<.>r of a million revolutions a minute and travel. ling at the rate of about 2,000 rniks an hour when it leaves the gun ......... \Ve do not know whether the barrel of this gun (exhibit P.16) is grooved or not. It is a single birrelled gun and is country made.

The likelihood is that the barrel is not grooved."

On a careful re" ding of the judgment under appeal. it appears that 1 he learned ] uclges of the High Court strongly felt that they had no adequate explanation in the oral evidence before them for certain puzzling features of the injuries on Dalip Singh.

This is exactly what we also feel in this case, and it seems to us that the evidence which has been adduced falls short of proof in regard to a very material part of the prosecution case.

In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecu. tion to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is

elementary that where the prosecution.has a definite 1950 or positive case, it must prove the whole of that case.

In the present case, it is doubtful whether the injuries Mohindor Singh which are attributed to the appellant were caused by Th ;; 1 a gun or by a rifle.

Indeed, it seems more likely that ' a' they were caused by a rifle than by a gun-, and yet the Fa•l Ali J. case for the prosecution is that the appellant was armed with a gun and, in his examination, it was definitely put to him that he was armed with the gun P-16. It is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possi. bly have been caused by a fire-arm being used at such a close range as is suggested in the evidence. It is clear, and it is also the prosecution case, that only 2 shots were fired at Dalip Singh and one of the crucial points which the prosecution had to prove was that these shots were fired by two persons and not by one man, and both the shots were fired in such manner and from such distance as is alleged by the eye witnesses. There is, in our opinion, a gap in the prosecution evidence on a most fundamental point and the error which has been committed by the courts below is to ignore the gap and decide the case merely upon the oral evidence of 3 witnesses, two of whom are mere chance witnesses and not altogether independent persons, and the evidence of the third witness is open to criticism on the ground of his partisanship as well as the improbability of his having been able to see the firing at his brother after he had himself been shot at the back of the neck. The learned Judges of the High Court, after commenting upon the entire evidence, say in their judgment:-

" We are thus left with the evidence of the three witnesses of the prosecution together with the state of wounds as shown by the medical evidence and an, unsatisfactory statement of Dr. Goy le,"

1900 They reject the evidence of Dr. Goy le and they consider the nature of the wounds to have created a Mohindtr Smghserious difficulty in the case. Having arrived at these

1'he ~1,. 1 ,. conclusions, it was a serious thing to rest the appellant's conviction wholly upon the oral testimony in Far! Ali J. the case which has remained unchecked and uncon. firmed by expert evidence. The real position appears to be that the prosecution case cannot be said to be wholly proved but only partly proved if it is permissible to use such an expression. This Court, as was pointed out in Pritam Singh v. The State (1), will not entertain a criminal appeal except in special and exceptional cases where it is manifest that by a disregard of the forms of legal process or by a violation of the principles of natural justice or otherwise substantial and grave injustice has been done. It seems to us that the present case comes within the rule laid down, because the appellant has been convicted notwithstanding the fact that the evidence is wanting on a most-material part of the prosecution case.

This is enough to dispose of this appeal, but we are constrained to say that we are not altogether happy about the manner in which the plea of alibi put forward by the appellant has been disposed of by the courts below.

Ordinarily this court will not look beyond the findings of fact arrived at by the courts below, but we find that in the present case the deci. sion on the plea of alibi has been arrived at in disre. gard of the principle that the standard of proof which is required in regard to that plea must be the same as the standard which is applied to the prosecution evidence and in both cases it should be a reasonable standard. It is common ground in this appeal that the appellant was summoned to appear before the Naib Tehsildar on the 28th February, 1949, which was the date fixed for dealing with Bachittar Singh's complaint. Ordinarily and without looking at anything else, there should have been nothing improbable about his appearance before the Naib Tehsildar on that date, but in the present case there is positive

(11 [1950] s.c, R. 453,

evidence that an application for a tacca vi loan bearing !95o that date and also bearing the thumb impression of. -- the appellant wa.s put up before the Naib Tehsildar J!ohinder Singh and that was dealt with by him on that very da.y.

The ?tate.

There is also affirmative evidence of a witness to prove that the appellant was present in the Naib Tehsildar's Fail Ali J. court. This witness is undoubtedly closely related to the appellant but his evidence is supported by probability and a written document. One of the points raised by the prosecution was that the summons for appearance on the 28th February was not served upon Mohinder Singh, but such evidence as there is on the record bearing on this point has certain peculiar features. The prosecution having cited the N aib Tehsildar and the Ahlrnad (Bench Clerk) as witnesses in the case gave them up and stated that the former had been won over by the appellant. This allegation could have been substantiated in the cross.examination of the Naib Tehsildar who was examined as a defence witness, but nothing was elicited from him to support such a charge. From the evidence of the Naib Tehsildar, it appears that on the 5th July, 1949, the Public Prosecutor showed him exhibit P.S. (which is an order directing the appearance of the seven persons including the appellant mentioned by Bachittar Singh in his complaint, before the Naib Tehsildar on the 28th February, 1949), and that he told the Public Prosecutor that 6 or 7 persons appeared in his court on that date. After this incident, on the 6th July, 1949, the Public Prosecutor informed the Court that he would "give up the Naib Tehsildar as he has been won over ''. The evidence of the process peon is of a somewhat suspicious character, because he has conveniently forgotten every material detail. The appellant asserteci at the trial that the original report of the process peon had been suppressed and another report had been fabricated and substituted in its place.

An application to this effect was ma de by h irn before the corn rnitting Magistrate, and he also examined a handwriting expert to prove some of his allegations.

Neither of the courts below has dealt with the evidence

19~0 of this expert. The evidence of the Investigating . -- 8 . hOfficer as recorded by the Sessions Judge is to the Moh"'"" ••g f JI ff t •. o owmg e ec :-

The stat•. "P.B. and P.C. were obtained by me from the headquarters. Along with P.B. and P.C. the Parvana h'a•I Ali J.

P.S. was also received by me. After going through the zimnis, the witness states that the aforesaid documents P.B., P.C. and P.S. were summoned by the committing Magistrate and were not sent for by the witness.

On 16th March, 1949, a Foot Constable was certainly sent to Zira to bring the said file.

But since the file had been sent to the headquarters, therefore, the said constable returned quite blank. I never inspected this file at the headquarters."

The most material document with which we are concerned is P.S. which should have contained an endorsement of service of summons on the persons against whom Bachittar Singh had complained. It is clear from the first part of the evidence of the Investigating Officer that he had received the report of the process peon which was endorsed on the back of P .S., from the headquarters, but he says later that the papers were sent for but they did not arrive. It is surprising that when a document was the subject of so much controversy he should have said by mistake that he had received it. One of the comments made by the learned Sessions Judge in dealing with the application alleged to have been made by the appellant on the 28th February, 1949, for a taccavi loan is that after producing the application before the N aib Tehsildar on that date, Mohinder Singh could have reached his village by noon time, but on this point the learned Sessions Judge seems to have wholly ignored the evidence of the Naib Tehsildar that he usually dealt with such applications between 12 and 4 P.M. on working days, and also the affirmative evidence of Joginder Singh.

In our opinion, there has been in substance no fair and proper trial in this case, and we are constrained to allow this appeal, set aside the conviction of the appellant under sections 302 and 307 read with section 34

...

. .

of the Indian Penal Code, and direct that he be set at 195" liberty forthwith. In crdinary circumstances, we -d- . . b Afohin er Singh might have remanded the case for a fresh tnal, ut we v. consider that such a course would, in the present The State. case, be unfair and contrary to settled practice, seeing that the appellant has been in a state of suspense over Fail Ali J. his sentence of death for more than a year .

Appeal allowed.

Agent for the appellant: R.S. Narula.

Agent for the respondent: P.A. Mehta.

MANGAN LAL DEOSHI

MOHAMMAD MOINUL HAQUE & OTHERS.

[SHRI HARILAL KANIA C.J., PATANJALI SASTRT

and DAS JJ.]

Indian R<gistration Act. 1908. s. 17 (1) (bl awl (d), !. 17 (21- " Lease "-Conivromise decree c1eatina !tnder.lea.se l.Jetw::e11 A and E on condition that A vavs a. s1t11i. of money to 0-TV!utlrnr comr'llfrorify regist1ab 1e-Aareem£nt to lease not creatin'] i'lnmdiate interest in

lad-Whether ''lease ".

An agreement for a lense, which a lease is by the Indian Registration Act declared to include, must be a document which effects an nctu•I demise and operates as a lease. It must creato a present and irn1nediate interest in land.

Where a litigation between two perrnns A and B who claimed to he tenants under C was settled by a compromise decree tho effect of which \\'RS to create a perpetual underlease between A and B which was to tako effect only on condition that A paid ll.s. 8,000 to C within a fixed period :

He,7d, that such a contingent agreement was not

11 a. lease" within cl. (d) of s. I 7 (1) of the Indian Registrotion Act, ond even though it was covered by cl. (b' of the said section it was exempt from registration under cl. (vi) of subs. (2) of s. 17.

Hemanta Kumari Debi v. Midnapur Zaminiari Co. (I L.R. 47 Cal. 485 P.O.) relied on.

CIVIL

APPELLATE j!JRISmGTION: Civil Appeal No. 94 of 1949. ·

Dec. l,

N.tayam Rama

Kdshna Rao

M .S. Krishnamoorthi Sastri

M.S.K. Aiyangar

MOHINDEI<. SINGH

THE STATE

MuKHERJEA

HANDRASEKHARA AIYAR JJ

Kandrikori Ghtllayanima

High Court of Punjab

Falshaw

Soni

ss. 302 and 307

s. 34

Indian Penal Code

20th July, 1949

ai Gopal Sethi

R. L. Kohli

K. Khanna

S. M. Sikri

Fall Ah

Mohinder Singh

sections 302 and 307

section 34

Indian Penal Code

Bachittar Singh

Dalip Singh

Zira

Mohinder Singh

28th February, 1949

Jita Singh

Gumam Singh

Mohinder The tat" Singh

Gurnam Singh

J ita Singh

Dharamkot

Augar

Sessions Judge of Ferozepore

sections 302 and 307

section 34

Indian Penal Code

section 302

section 307

section 34

Indian Penal Code

Fazt Ali

Dalip Sin

Gayle

C.I.D. Laboratory, Phil!aur,

Jita Singh

Harnam Singh

Buta Singh

Harnam Singh

Buta Singh

Ali

.Mohinder Singh

section 342

Augur

Jogindar Singh

Goy le

Sethi

Taylor

Hatcher

Mohindor Singh

Fa•l Ali

Far! Ali

J!ohinder Singh

Fail Ali

Naib Tehsildar

5th July, 1949

6th July, 1949

P.B.

P.C. the Parvana h'a•I Ali J.

16th March, 1949

Joginder Singh

sections 302 and 307

section 34

Indian Penal Code

Afohin er Singh

R.S. Narula

P.A. Mehta

MANGAN LAL DEOSHI

MOHAMMAD MOINUL HAQUE

HARILAL KANIA

PATANJALI SASTRT

DAS

s. 17

Registration Act

s. 8

s. 17