SAMPAT SINGH v:

STATE OF RAJASTHAN

January 7, 1969

(M. HIDAYATULLAH, C.J. AND G. K. MITTER, J.j

Code of Criminal Procedure (Act 5 of 1898), s. 342-Non-confes- )"iouill stare111ent of accused how far 1nay be relied on for purpose of ..,"011i'iction.

The appellant was tried for murder under s. 302 of the Indian Penal Code but was convicted only under s. 304 Part II of the Code. In hold- ; ng him so guilty the trial court and the High Court did not fully believe the prosecution version of the incident but accepted the appellant's version in part whereby he claimed the right of self-defence. They howe\er held on the facts that he had exceeded the right of self-defence and convicted him accordingly.

In appeal before this Court it was contended that the accused's statement under s. 342 Criminal Procedure Code should -only be considered in itS entirety and a part of it cannot be used for the puroose of convicting him.

Jn support of this contention reliance \\'as pJaCed on the decision of this Court in Narain Singh's case.

HELD : Both the courts below on the facts were justified in coming to the conclusion that the appellant exceeded his right of self-defence.

Neither court had relied only on the. statement of the appeJlant under s. 342 Cr. P.C. to arrive at the finding.

There was sufficient other evidence to warrant the conclusion that the right of private defence had been exceeded.

Jn these circumstances the rule in Narain Singh's case namely that the conviction of an accused cannot be based on his statement

alone where the statement does not amount to a confession, was not attracted. It is permissible for the court to rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. [234 H-235 CJ

Narain Singh v. Stat.e of Punjab. [1963) 3 S.C.R. 678, distinguished.

/)lishi KGnt Jha v. State of Bihar, [1969) 2 S.C.R. 1033, followed and applied.

CRIMINAL APPELLATE JURISnICTION : Criminal Appeal No. 146 of 1967.

Appeal by special leave from the judgment and order dated February 27, 1967 of the Rajasthan High Court in D. B.

Criminal Appeal No. 32 of 1964.

B. R. Dhawan, B. P. Maurya, P. N. Tiwari, Santosh Gupta and Sobhag Mal Jain, for the appellant.

K. Baldev Mehta, for the respondent.

The Judgment of the Court wai delivered, by Mitter, J, The main question inv01ved ill- . this appeal is, whether there was evidence to justify the finding that the appellant

SAMPAT SINGH v. RAJASTHAN (Mitter, !.) 229• A had exceeded his right of private defence in giving two blows with a dagger to one Shyamsingh one of which proved fatal.

The prosecution case was as follows.

There was a long-. standing enmity between the families of Achalsingh on the one hand and Hariram and his sons on the other on account of the fact that the admitted advance of Rs. 10,000/- by Hariram to Achalsingh some years back had not been repaid in spite of. numerous demands made from time to time.

The houses of Hariram and Achalsingh were situated at a short distance from each other in the City of Jodhpur. Hariram had two sons, Rameshwar and Devilal. Rameshwar had been given in adoption to his uncle but the relationship between him and his brother, Devilal continued to be quite cordial. Rameshwar was married. to one Ratan Kanwar whose brother Sbyamsingh came to lose his life in the way to be narrated hereafter. Achalsingh had two•

sons, Sampatsingh and Shyamlal. On March 28, 1963 at about 6 p.m. there was a quarrel between Devilal on the one hand and'.

Asulal, Sampat Singh, Shyamlal and two friends of theirs, Kishensingh and Uttam Giri on the other. This group of people started abusing Devilal whereupon Rameshwar's wife, Ratan Kanwar tried to intervene and stop the quarrel. The said group who were all accused in the Sessions Case which followed beat both Devilal and Ratan Kanwar. They also took away a golden Jhumri from tbe right ear of Ratan Kanwar. Eventually people of the locality put an end to this affair. Ratan Kanwar sent messages to her husband Rameshwar and her brother Shyamsingh, deceased.

Before Shyamsingh reached the place; all the accused came from the house of Achalsingh to that of Devilal and raised a shout asking the latter to come out. The accused were armed variously, Sampat Singh with a dagger and the others with lathis. Rameshwar who happened to be there tried to close the door of Devilal's house, but the accused managed to get inand dragged Rameshwar out and started beating him.

Ratan Kanwar who tried to intervene was also hurt.

She received a blow on the head with a dagger of Sampatsingh as also lathi blows from the others.

Shyamsingh, the deceased, happened to come on the scene at that hour and the fury of the accused felf upon Jiim.

Achalsingh's son, Shyamlal caught hold of Shyamsingh and Sampat Singh, appellant, struck blows with the Jambia on Shyamsingh's thigh and on his back near the waist. People of the neighbourhood like Ambalal. (P.W. 14), Nainsingh (P.W . 13), Satyanarain (P.W. 15) and Bhagwandas (P.W. 16) who came in aid of Rameshwar's group were also injured by the accused.

Nainsingh, Ambalal and Satyanarain were all injured by the lambia of Sampat Singh.

Thereafter the accused left the place.

Shyamsingh, Ratan Kanwar and Ambalal were taken away by Rameshwar to the police station and a first information report was lodged at 8.30 p.m.

The ijured persos were se_nt to the hospital and Shamsingh was ad1mtted as an mdoor patient. Dr. Ojha who examined Shyamsingh thought his condition to be critical and arranged for a dying. declaration of Shyamsingh to be recorded at 9.25 p.m.

Shyamsmgh stated that he had been wounded by Sampat Singh

by means of a Jambia.

The City Magistrate, Jodhpur who came in answer. to a summons recorded another dying declaration at

10.50 p.m. The injury report on the person of Shyamsingh by Dr. K. C. Singhal was as follows :-

1. Incised wound !" x t" x muscle deep tapering 2" x 1/10" below the medial aspect of the right thigh middle part.

2. Incised wound 1 !" x t" x cavity deep 0:n the left lumbar region, and

3. Teeth marks elliptical in shape 1 t" in area on the left shoulder.

In spite of the operation performed on him Shyam Singh expired

on March 31, 1963 at 4 a.m. and the postmortam was performed D on the body by Dr. Har Govind. Dr. Singhal also examined Ratan Kanwar, Ambalal. Nain Singh and Satyanarain. On the person of Ratan Kanwar there was only one incised wound while there were three such wounds on the person of Ambalal, two on the person of Nain Singh and one on the person of Satyanarain.

On the person of the accused Shyamlal there appeared various wounds but the injuries according to Dr. Har Govind were all E simple in nature caused by a blunt weapon excepting a sceptic wound on the right little finger about which the doctor could form no definiteopinion. On the person of some of the other accused several abrasions were noticed on medical examination. Sampat

Singh, the appellant, had a sceptic wound of t" X t" skin deep on the right little finger and an abrasion t" x t" on the fmn't of the F right knee. The injuries were all simple in nature. The Jambia which was recovered µt the instance of Sampat Singh from his house was not found to be blood-stained.

The accused Achalsingh was arrested long time after the crime i.e., on 19th April, 1963.

On examination by the Munsif-Magistrate of Jodhpur, Sam- G patsingh gave a version of the incident which "\Vas completely at variance with the prosecution story.

According to this, he had learnt at about 5.30 p.m. on March 28. 1963 from his brother.

Shyamlal that Devilal and Shyamsingh had threatened to beat him.

Some friends, vi: .. Asulal, Kishensingh and Uttam Giri had also gathered in their house for the purpose of going to a H fair.

Uttam Giri wanted to go to the house of Hotchand and the appellant directed his brother, Shyamlal to accompany Uttam Giri. Shortly thereafter, he heard the cry of Shamlal that he was

.,,,

' ~·

, ., i

SAMPAT SINGH v. RAJASTHAN (Miner, 1.) 231

A being beaten and coming out of the house on to the road he • found Shyamsingh, the deceased, Nainsingh, Ambalal and Satyanarain beating Shyamlal and Uttam Girl.

Asulal and Kishen- • singh also came out and tried to save Shyamlal and Uttam Giri.

~ Shyamlal was lying on the ground and Shyamsingh, deceased was sitting on his chest.

Shyamlal's eyes were bulging out.

The

B appellant tried to free his brother from the clutches of Shyamsingh but as he could not do so with bare hands he took out the Jambia which was tied round the waist of the deceased and wielded the same injuring Nainsingh, Ambalal and Satyanarain who were trying to attack him. He also gave a b!Ow on the thigh of the deceased but even then Shyamsingh would not let c go his brother Shyarnlal whereupon he gave another blow to Shyamsingh on his waist with the Jambia.

According to the appellant he had given these blows to save the life of his brother Shyamlal and had thereafter run away throwing the Jambia on the spot. Shyamlal's version which substantially agreed with that of his brother Sampatsingh was to the effect that Shyamsingh was trying to throttle him ( Shyamlal) and he had practicaly lost con- D sciousness; when he came round he found Shyamsingh, deceased, lying near him and his brother Sampat Singh leaving him.

The accused were committed for trial to the Court of Sessions Judge, Jodhpur. There they repeated the statements made by them before the committing Magistrate. According to the Sessions E Judge, the version relating to the occurrence said to have taken place at 6.30 p.m. on March 28, 1963 was not true. As regards the second occurrence on the same day at about 9 p.m. the Judge held that there was no beating given by any of the accused to the prosecution witnesses before Shyamsingh reached the place of occurrence. The Sessions Judge further found that this incident

F had taken place substantially in the manner deposed to by the accused Sampat Singh and others and not as alleged by the prosecution and that Shyasingh had received the fatal injury with a Jambia from Sampatsmgh when the former was sitting on the ches! ?f hyamlal. an_d had caught h_old of his neck. As regards the m1unes to Namsmgh, Satyanaram and Ambalal, the Sessions

G Judge found that these were caused by the Jambia o4' Sampat Singh to save himself from their attack. The Judge further found that the Jambia was not with the appellant initially but was taken from the person of the deceased. For this the Sessions Judge relied on the statement of the accused.

He however held that the grip of the deceased on the neck of Shyamlal accused was not of such a nature as to lead to an apprehension that the deceased meant to H cause death by strangulation. The Sessions Judge held that the .: deceased had caught hold of Shyamlal to facilitate the beating "'.hich he intended to give him and that Sampatsingh was a suffi-

""'

c1ently powerful man who could have rescued his brother, Shyam-

Jal by pushing or dragging Shyamsingh aside and not by inflicting A injuries wtih the Jambia and the circumstances did not justify the resort to such severe measures. Alternatively, the Sessions Judge held that Sampat Singh had exceeded his right of private defence of his brother and could not be protected under the law for the consequences of his act. On this view, he convicted the appellant of an offence under s. 304 Part II of the Indian Penal Code and B sentenced him to rigorous imprisonment for four years and a fine of Rs. 100/, or in default to suffer two months further rigorous imprisonment. He was however acquitted of the offences under sections 148, 302, 324/323/148 and 324/149 I.P.C.

The other accused were all acquitted.

On behalf of the appellant it was urged before the High Court. as it was before us, that on rejection of the evidence of the prosecution witnesses with regard to the -occurrence at 6 p.m. and 9 p.m. by the Sessions Judge, the appellant could not have been convicted merely on the basis of his statement under

5. 342 Cr.P.C.

Reliance was placed before us, as before the High Court, on the decision of this Court in Narain Singh v.

State of Punjab(').

There it was observed on an interpretation of s. 342 that : ~

"If the accused person in his examination under s. 342 confesses to the commission of the offence charged against him the court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.

It is not open to the court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation." In that case the prosecution did not by reliable evidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder. To quote the words of Shah, J. in that case : "His responsibiliry, if any, arose only out of the plea raised by him : if the plea amounted to a confession of guilt the court could convict him relying upon that plea, but if it amounted to admission of facts and raised a

(t) [1963] I 3 S.C.R. 678.

A plea of justification, the court could not proceed to deal with the case as if the admission of facts which were not part of the prosecution case was true, and the evidence did not warrant the plea of justification." In our view, the ratio of that case is not applicable to the appeal before us.

No doubt the Sessions Judge did not accept B the genesis of the prosecution story, namely, the inddent at 6 p.m. and was further of the view that the account given by the accused was to be preferred to that of the prosecution with regard to the second incident.

But tlie High Court which sifted the evidence for itself did not take the same view of the facts as the learned Sessions Judge. According to the High Court, there was C some sort of incident at about 6 p.m. between the sons of Achalsingh and Devilal and from verbal altercation the matter assumed serious proportion leading to a fight.

The High Court held that the evidence of Ratan Kanwar and Devilal with regard to the assault and the snatching of the golden jhumri, though exaggerated, was not altogether without foundation.

The accused other than Shyamlal may not have been present on the first D occasion but they were there on the scene of the second occurren, ce.

We may add that even the story of the accused goes to show that there had been some trouble before the incident at 8.30 or 9 p.m. The High Court did not accept the story with regard to the snatching of the jhumri and was of the view that the first occurrence furnished a background for what happened E later on. The High Court also agreed with the trial court that the prosecution story that Achalsingh and his sons accompanied by Kishansingh and Uttam Giri had gone to the house of Rameshwar at about 8 p.m. and hurled abuses on him and others was not true inasmuch as if five persons armed with lathis and one with a dagger had entered the house of Rameshwar and dragged hini F outside there would have been marks of injury on Rameshwar who did not get himself examined. The High Court relied on the injuries found on the person of the deceased specially the teeth marks as going to show that Shyamlal had tried to free himself from the clutches of Shyamsingh deceased and at that stage Sampatsingh, the appellant, had appeared o, n the scene and finding the deceased sitting on the chest of his brother had tried to force G them apart and when he found that he could not do this with bare hands he had taken the Jambia from the waist of the deceased and inflicted two injuries on him. The prosecution evidence of Ratan Kanwar, Rameshwar and other witnesses was that the injuries to the deceased were inflicted while he was standing. This was not accepted y th<: Sessions Judge who, as already stated, H on? that the versm? given by the accused with regard to the m)unes by .the Jamb1a was. the correct one. According to the _ Htg~ Court, however, the circumstances were more consistent with the infliction of the injury while the deceased Shyamsingh was L7Sup .. I./61-16

standing. The High Court also commented on the Jact that the Sessions Judge over[ooked the statement of Dr. Ojha who had stated that the injury inflicted in the lumbar region of the decea<ied was sufficient in the ordinary course of nature to cause his de.ath. It may be noted that Dr. Har Govind's evidence was somewhat different.

This doctor had stated that though the injuries were not dangerous to life, they could result in death. Examining the evidence of the two doctors, the High Court preferred the view of Dr. Ojha that the injury on the lumbar region of the deceased was sufficient in the ordinary course of nature to cause death.

Ultimately, the High Court held that the Sessions Judge had not rejected the entire prosecution evidence but had considered the same along with the explanation offered by. the accused in forming his own conclusion. The High Court also pointed out that the Sessions Judge had not rejected the evidence of all the prosecution witnesse_s on the point that it was the appellant who had given two blows by Jambia on the deceased, one on the right thigh and the other on the waist.

The striking of the deceased by the appellant with Jambia was the common case of the parties.

The medical evidence showed that one of the wounds was sufficient in the ordinary course of nature to have caused the death of Shyamsingh. Shyamlal, the brother of the appellant, was certainly having the worst of the struggle with Shyamsingh and the circumstances certainly justified the appellant's attempt to force them apart. Both courts held that the nature of the attack on Shyamlal by Shyamsingh was not such as to have necessitated the infliction of the second injury by the Jambia.

Both courts accepted the appellant's version that he was exercising his right of private defence of the person of his brother. The High Court negatived the contention that such right of private defence went to the extent of causing the death of the assailant by the appellant. The High Court did not accept the version that there was an attempt on the part of Shyamsingh to strangulate Shyamlal giving rise to an apprehension in the mind of the appellant that grievous hurt or even death might be caused thereby. The evidence did not disclose any marks of finger nails or bruises or even blue signs on the neck of Shyamlal who was examined two days after the incident. The High Court relied on the statement of the appellant himself before the committing court that the deceased had caught hold of the neck of his brother. On the evidence, the trial court did not find that the appellant had intention to murder Shyamsingh but he had exceeded the right of private defence of his brother by causing the serious injuries to the deceased with the Jambia.

In our view, both courts, on the facts, were justified in coming to the conclusion that the appellant' had exceeded his right of private defence. Neither court had relied only on the statement

of the appellant under s. 342 Cr. P. C. to arrive at its finding.

There was sufficient other evidence including the injury report and the testimony of Dr. Ojha to warrant the conclusion that the right of private defence had been exceeded and the appellant was rightly convicted under s. 304 Part II l.P.C. In Nishi Kant Jha v. The State of Bihar(') it was held by this Court that the court may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. In that case, there were no eye witnesses to the commission of the crime and the evidence was all circwnstantial and the statement of the accused that he was present at the scene of the crime was a vital circwnstance which taken in conjunction with other circumstances led the court to come to the conclusion that he was guilty of the crime imputed to him. In our view the decision in Narain. Singh's case(') does not apply to the facts before us and we hold that the evidence justified the conviction of the appellant.

The appeal is, therefore, dismissed and the conviction and sentence upheld.

G.C.

(I) [1969] 2 S.C.R. 1033.

(2) (1963] 3 S.C.R. 678.

Appeal dismissed.

SAMPAT SINGH

STATE OF RAJASTHAN

January 7, 1969

M. HIDAYATULLAH, C.J.

G. K. MITTER, J.j

Code of Criminal Procedure

s. 342

s. 302

Indian Penal Code

s. 304

Part II of the Code

s. 342

Criminal Procedure Code

Narain Singh

s. 342

[1963) 3 S.C.R. 678

[1969) 2 S.C.R. 1033

D. B.

B. R. Dhawan

B. P. Maurya

P. N. Tiwari

Santosh Gupta

Sobhag Mal Jain

K. Baldev Mehta

Mitter

Shyamsingh

Achalsingh

Hariram

Jodhpur

Rameshwar

Devilal

Ratan Kanwar

Sbyamsingh

Sampatsingh

Shyamlal

March 28, 1963

Asulal

Sampat Singh

Kishensingh

Uttam Giri

Jiim

Ambalal

Nainsingh

Satyanarain

Bhagwandas

Nainsingh

Ambalal

Satyanarain

Ambalal

Shamsingh

Ojha

Shyamsmgh

City Magistrate, Jodhpur

K. C. Singhal

Shyam Singh

March 31, 1963

Har Govind

Singhal

Nain Singh

Sampat

Singh

19th April, 1963

Munsif-Magistrate of Jodhpur

Sam- G patsingh

March 28. 1963

Hotchand

Shamlal

Nainsingh

Uttam Girl

Asulal

Kishen- • singh

Shyarnlal

Court of Sessions Judge, Jodhpur

Shyasingh

Sampatsmgh

Namsmgh

Satyanaram

Shyam-

Jal

s. 304

Part II of the Indian Penal Code

sections 148, 302, 324

I.P.C

Cr.P.C

s. 342

s. 342

Shah

Kishansingh

Sampatsingh

Ratan Kanwar

Rameshwar

Har Govind

Jambia

Shyamsingh. Shyamlal

s. 342

Ojha

s. 304

Narain. Singh

[1969] 2 S.C.R. 1033

(1963] 3 S.C.R. 678


PIARA SINGH v.

STATE OF PUNJAB

January 8, 1969

(J. C. SHAH, V. RAMASWAM! AND A. N, GROVER, JJ, J B

Evidence-Pri11ciple of i.Btteestoppel-Approver's evidence, value Of.

The appellant and S were charged for an olfen.ce under s. 302 I.P.C. anti under the Explosive Substances Act.

The prosecution relied upon the evidence of the approver. The approver's statement was corrobow rntcd, (a) by the rec0very of a piece of cloth which was part of the same cloth used in the crime, (b) by the evidence of that the box was made for the appellant, and ( c) by the evidence regarding despatch of

thL~ parcel by the appellant.· The Sessions Judge convicted the appellant

~1nJ S, against which both appealed. 1'he conviction of the appellant was upheld by the High Court, as it considered that the statement of theapprover was corroborated by the evidence of other witnesses so far the appellant was concerned.

But the High Court acquitted S being of the view that there Y.'as no independent corroboration of the approver's C\ idcnce Y.1hich lead to the inference that S was instrumental in the con1mission of the crime. In appeal to this Court, the appellant contcr..Jcd that (i) the affect of acquittal of S was to weaken, if not to dc, troy, the approver's evidence so far as it concerned the appellant, rd ting on the principles of issue-estoppel; and (ii) there was no corroboration of the approver's evidence so far as the appellant was concerned.

Di~.missing the appeal,

HELD: (i) For the principle of issuccstoppel to arise, there must ha\..: been distinctly raised and inevitably decided the same issue in the earlier proceedings between the .same parties.

But the principle cannot he invoked in the present case because the parties are djfferent and the decision. upon any Jssue as between State and s. in the same litigation

c~1nnot operate as binding upon the State with regard to the present appellant. [242 DE]

Prita1n Singh v. State of Punjab, A.LR. 1956 S.C, 415, and Manipur Adntinistration v. Thokchoni Bira Singh, [1964] 7 S.C.R.' 123, fo1Jowed.

Sa1nh(; sir(I1J1 v. Puh/ic Prosecutor, Federation of Malaya, [1950] A.C.

4'~· Kin!! v. Wilkes. 77 C.L.R. 511 at pp. 518·5!9, Marz v. The Queen. ( 1~56) 96 C.L.R. 62, Again in Brown v. Robinson, (1960) SR, (N.S.W.)

297. 301, applied.

(ii) The application of approver's evidence has to satisfy a double tC'>L His evidence rnu-; t show that he is a reliable witness and that is a test 1Nhich is common to afl the \Vitncsses.

If this test is satisfied the second test which still remains to be applied is that the approver's e\idence nlUSl receive sufficient corroboration. It would not however. be right to expect that such independent corroboration shciuld cover the \vhole of the prosecution case.

In the present case, the High Court had H rightly applied this principle and reached the conclusion that the appro- Yc:"s evidence was materiatly corroborated so far as the appel'lan.t v.1a; concerned. [243 A-Cl

A Sarwa11 Singh v. StMe of Punjab, A.LR. 1957 S.C. 637, followed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals No. 158 and 197 of 1968.

Appeals by certificate/special leave from the judgment and order dated November 3, 1967 of the Punjab and Haryana High B Court in Criminal Appeal No. 602 of 1967 and Murder Reference No. 45 of 1967.

J. P. Mitter, J. C. Talwar and R. L. Kohli, for the appellant (in both the appeals).

Kartar Singh Chawla and R. N. Sachthey, for the respondent (in both the appeals).

The Judgmet of the Court was delivered by Ramaswami, J. The appellant Piara Singh and one Nand Lal Sehgal were tried together by the Sessions Judge of Kapurthala, who by his judgment dated 1st July, 1967 convicted the appellant under section 302, LP .C. and sentenced him to death. The appellant was also convicted and sentenced to 5 years' rigorous imprisonment under section 3 of the Explosive Substances Act and to 5 years' rigorous imprisonment under section 326 of the Indian Penal Code. Nand Lal Sehgal was sentenced to life imprisonment under section 302 read with sections 109 and 113, I.P .C. and to 5 years' rigorous imprisonment under section 4 of the Explosive Substances Act. Both the convicted persons filed appeals in the Punjab and Haryana High Court, viz.

Criminal Appeal No. 602 of 1967 and 601 of 1967. The State of Punjab also filed a criminal revision No. 1006 of 1967 for enhanceme.nt

of sentence of Nand Lal Sehgal. By a common judgment dated 3rd November, 1967, the High Court dismissed the appeal of the appellant and confirmed th~ sentence of death imposed upon him.

The High Court, however, acquitted Nand Lal Sehgal by allowing his appeal and dismissed the revision petition filed by the State of Punjab. These are two appeals one by certificate and the other by special leave on behalf of the appellant Piara Singh against the judgment of the Punjab and Hary.ana High Court dated 3rd Novemoor, 1967.

The case of the prosecution was that one Ram Sahai P.W. 19, wh? was the organising Secretary of Jagatjit Kapra Mills Mazdoor U mon, Phagwara, had proceeded on hunger strike from 1st October, 1966 in front of the gate of the J agatjit Textile Mills, Phagwara (hereinafter called the Mills) in order to compel the management to accept certain demands of that Union regarding dearness allowance, gratuity for re-employment of the labourers who had been tunned out of service and the like.

The hunger strike of Ram Sahai was supposed to last till death or the acceptance of the

demands by the Mills whichever was earlier. A tent had been fixed outside the gate of the Mills and Ram Sahai used to sit on a cot under the tent. On 4th October, 1966, at 1.45 p.m. Ram Labhaya, Postman, P.W. 31 came there with a registered parcel addressed to Ram Sahai. On the parcel being opened, a bomb

inide it exploded, as a result of which Radhey Sham, Shadi Lal and Charanjit Lal died and P.W. 11 Chanan Singh, P.W. 14 Moti Lal, P.W. 16 Madhu Parshad, P.W. 17 Tara Singh, P.W. 18 Ram Dass, P.W. 20 Muni Lal and P.W. 21 Naunihal Singh received injuries. It is alleged for the prosecution that the parcel had been despatched by the appellant from Amritsar at the instance of Nand Lal Sehgal and that the approver Mohinder Singh had helped the appellant in pr.paring the parcel contining the bomb.

The first clue in connection with the crime was obtained by the police on 8th October, 1966 when at about 4.00 p.m., P.W. 25 Amrik Singh, a resident of Amritsar appeared before Sub- Inspector Mohinderpal Singh P.W. 59 and made a statement that he had known Piara Singh before and was friendly with him, that on 3rd October, 1966, Piara Singh, who was carrying a Jhola, which appeared to contain something bulky, met him and in response to an invitation for tea, told Amrik Singh that he was in a hurry to go for some work. Three or four days later, Amrik Singh read in a newspaper regarding explosion of a bomb near the Textile Mills Phagwara. On the 7th October, 1966, Sri Niwas.

P.W. 27 who is a deed writer, met him and told him that Piara Singh had despatched a parcel from Amritsar.

The most important witness in the case is Mohinder Singh.

P.W. 8 who was tendered pardon under section 337 of the Code of Criminal Procedure by the District Magistrate, Kapurthala. The evidence of approver is to the effect that he was working in the Mills since 1951 and three or four years later Piara Singh also joined service in that Mills and was working as his subordinaie.

Piara Singh developed cordial relations with Nand Lal Sehgal and used to assist him in breaking up labour strikes. One and a half months before the occurrence, Piara Singh came to the approver's residence and told him that Sehgal wanted one Ram Singh who

wa~ employed in the Textile Mills, Ganga Nagar, to be killed, Piara Singh suggested the device of sending a bomb in a parcel ta the victim and when the parcel would be opened, the bomb would explode. About 15 days before the incident, Piara Singh again came to the approver and told him that he had secured a bomb nnd he wanted to get prepared two wooden boxes, one smaller in

,; L~ than the other. The approver and Piara Singh thereafter went to the shop of Nazar Singh, P.W. 22 a carpenter of Phagwara. who made the box. Later in the evening they. went to the shop •Jf Gian Singh. P.W. 23 a carpenter of village Chachoki, which is said to be half a mile from Phagwara. Piara Singh got prepared

P!ARA SINGH v. PUNJAB (Ramaswami, !.) 239

from him six picc.s of phaties of raw wood. After it had ecomc dark, Piara Singh brought to the approver's house these articles as also a bomb saying that he had removed the fuse of the bomb rn that if it should fall, it may not explode. On 2nd October, 1966 Piara Singh came to the approver's house at 10 p.m. and informed him of Sehgal's intention that the bomb should now be sent ro as to explode at Ram Sahai who was the leader of the strikers at Phagwara.

Piara Singh thereafter prepared a wooden box from the six pieces of phaties.

The approver described the arrangement for packing the bomb as follows :-

"Placing the fuse in the bomb after removing the pin and placing a wire in its place, we placed it in that box. Then the box was closed and the lid was placed on it with Kabza a1nd Kundi. In that Kundi a nut was placed and a bolt was fitted in it so that the box may not open.

Then the box was also tied with strings so that the

Phaties may not give way on account of the pressure of the lever. Then from the hole, which was on one side of the box corresponding to the wire fitted in the bomb, the wire was pulled out. Then that wooden box was placed in the bigger box.

Piara Singh accused had brought with him a piece of Khaddar cloth and a parcel was made of the bigger box in that cloth. The pieces of Khaddar which were spare placed in between the two boxes so that the smaller box may not move inside the bigger box. Because of the spare pieces of cloth were not sufficient so I gave two shirts of my ch'ildren to Piara Singh. Those shirts were of Poplin of blue colour. Piara Singh tore one shirt into pieces and placed those pieces also in between those boxes.

Before the parcel was prepared in the Khaddar cloth the bigger box was secured with nails."

At about 1 a.m. the approver and Piara Singh went to the house of Sehgal and explained to him how they had prepared the parcel. Piara Singh told Sehgal that when Ram Sahai would open the parcel, the bomb would explode and he would die.

Sehgal made over a sheet of paper to Piara Singh on which was written

te address of Ram Sabai.

Sehgal also gave Rs. 40/- to Piara Smgh for expenses and instructed him that the parcel had to be sent through the Post ffice at Amritsar. Next day on 3rd

Octoer, 1966 P1.ara Sgh came to the approver in the morning carrymg a Jhola m which he placed the parcel containing the wen box.

The approver took Prara Singh to the Railway Station, Phagwara. In the evening Piara Singh returned at about 6 p.m. and told the approver that he had got the parcel despatched as directed by Sehgal from Amritsar where he had also met Amrik Singh. Both of them then went to the house of Sehgal and

Piara Singh handed over the registration receipt to him saying that it should be destroyed.

At about 2 p.m. on the next day, i.e. 4th October, 1966, the approver learnt about the explosion of the bomb.

, The High Court considered that the statement of the approver was sufficiently corroborated by the evidence of Nazar Singh P.W. 22, Gian Singh P.W. 23, Sardara Singh P.W. 24, Amrik Singh P.W. 25 and Sri Niwas P.S. 27 so far as the appellant was concerned. The High Court accordingly held that charges under ss. 302 and 326,

I.P.C. and section 3 of the Explosive Substances Act were established against the appellant. As regards Nand Lal Sehgal the High Court took the view that there was no independent corroboration of the approver's evidence which could reasonably lead to the inference that Sehgal was insirumental in the commission of the crime. The High Court, therefore, acquitted Nand Lal Sehgal.

In support of his appeal Mr. Mitter contended, \n the first place, that by reason of the acquittal of Nand Lal Sehgal the evidence given in the case concerning N and Lal Sehgal must be totally rejected. It was contended that the evidence of the approver so far as it concerns Nand Lal Sehgal must be eliminated.

In other words, the argument was that the effect of acquitial of Nand Lal Sehgal was to weaken if not to destroy the approver's evidence so far as it concerns the appellant also. In this connection Mr. Mitter relied upon the principle of issue-estoppel and tefurred to the decision of the Judicial Committee in Sambasivam

v. Public Prosecutor, Federation of Malaya,('), and the decision of this Court in Pritam Singh v. State of Punjab,(2 ) and Manipur Administration v. Thokchom Bira Singh( 8). In our opinion, there is no justification for this argument. It is true that Nand Lal Sehgal was acquitted by the High Court which took the view that the evidence of the approver was not corroborated . so far as Nand Lal Sehgal was concerned. But there is no finding of the High Court that the approver had implicated Nand Lal Sehgal falsely.

The High Court considered th.at there was no legal corroboration of the approver's evidence as regards Nand Lal Sehgal and in the absence of such corroboration it was not safe to upheld the conviction of Sehgal. That is a different thing from saying that the. Court found that the approver's evidence regarding the participation of Nand Lal Sehgal is false.

In any event, the principle of issue-estoppel has no application to )he present case.

It should be stated that the principle of issue-estoppel is different from the pr\nciple of double jeopardy or autre fois acquit as embodied in s. 403 of the Criminal Procedure ode. The prin-

(1) [19SO] A.C. 458.

(2) A.T.R. 1956 S.C. 415.

(3) [19641 7 S.C.R. 123.

ciple of issue-estoppel is a different principle, viz. where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of s. 403(2), Cr.P.C. Speaking on the principle of estoppel Dixon, J. said in King v. Wilkes(') :

"Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue-estoppel, if it appears by record of itself of as exp!~ by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in view on a second criminal trial of the same prisoner. That :; eems to be implied in the language used by Wright, J. in R. v. Ollis which in effect I have adopted in the foregoing statement ...... There must be a prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acuittal of the prisoner in the previous proceeding. But 1f such a condition of affairs arises I see no reason why the ordinary 1ules :if issue estoppel should not apply. Such rules are not to be confused with those of res judicata, which in criminal proceedings are expressed in the pleas of autre fois acquit and autre fois convict. They are pleas which are concerned with the judicial determination of an alleged criminal liability and in the case of conviction with the substitution of a new liability.

Issue-estoppel is concerned with the judicial etablishment of a proposition of Jaw or fact between parties.

It depends upon wellkn?wn doctrines which control the relitigation of issues which are settled by prior litigation."

In a subsequent case Marz v. The Queen( 2 ), Dixon, C.J. stated as follows :-

"The law which gives effect to issue-estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppel still Jess with the

proesses of reasonig by which the finding was reached m fact ...... It 1s enough that an issue or issues-

(1) 77C.L.R. Sii at pp. S18-Sl9.

(2) [19S6] 96 C.L.R. 62.

have been directly raised and found.

Once that is A done, then, so long as the finding stands, if there by any subsequent litigation between the same parties, no al!egations legally inconsistent with the finding may be made by qrre of them against the other. Res judicate pro veritme accipitur.

And .... this applies in pleas of the Crown." B

Again in Brown v. Robinson(') Herron and Maguire, JJ. said:

"Before issue-estoppel can succeed in a case such as this there must be prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner . . .. It depends upon an issue or issues having been distinctly raised and found in the former proceeding''.

The principle of issue-estoppel has received the approval of this Court in Pritam Singh v. State of Punjab(') and Manipur Administration v.

Thokchom Bira Singh(') and several later decisions. But the principle cannot be invoked in the present case because the parties are different and the decision upon any issue as between State and Nand Lal Sehgal in the same litigation cannot operate as binding upon the State with regard to present appellant.

For issue-estoppel to arise, there must have been distinctly raised and inevitably decided the same issue in the earlier proceedings between the same parties. In our opinion, Mr. Mitter is unable to make good his argumeint on this aspect of the case.

It was then contended on behalf of the appellant that there was no corroboration of the approver's evidence so far as he was concerned.

An accomplice is undoubtedly a competent witness under the Indian Evidence Act.

There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious taint in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other jndependent evidence. It would not, however, be right to expect that such independent corroboration should cover the whole of the prosecution case or even all the material particulars of the prosecution case. If such a view is adopted it will render the evidence of the accomplice wholy superfluous. On the other hand, it wiU not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, iin such a case, corroboration does not afford the necessary assurance that the

(I) (1960] S.R. (N. S. W.) 297. 301.

(2) A.1.R. 19'.6 S.C. 415.

(J) 119641 7 S.C.R. 123.

main story disclosed by the approver can be reasonably und safely accepted as true.

It is well settled that the appreciation of approver's evidence has to satisfy a double test.

His evidence must show that he is reliable witness and that is a test which is common to all the witnesses.

If this test is satisfied the second test which still remain to be applied is that the approver'1 evidence must receive sufficient corroboration. (See .Sarwan 5ingh v. State of Punjab) ( 1).

In the presnt case the High Court has rightly applied this principle and reached the conclusion that the approver's evidence was materially corroborated so far as the appellant was concerned. In the first place, the approver, satd that while going from his house when he fled from Phagwara, he had thrown the remaining pieces of the shirt in a cluster of sarkandas.

As a result of search A.SJ. Pritam Singh recovered torn pieces of cloth Exs. P. 9/1 to P. 9/3 from a bush about 150 yards from the Mill. The testimony of the expert Mr. Longia P.W. 7 shows that Exs. P. 9 / 1 to P. 9 I 3 were parts o.f the same cloth as pieces Exs. P. 10/ 1 to P. 10/3 which were used for packing the bomb between the inner and the outer boxes. If the approver was not a participant to the packing of the hand grenade, he could not possibly be in possession of the pieces of cloth Exs. P. ll/ I to P. 9/3. In the second place, the evidence of Nazar Singh, P. W. 22 indicates that he made the outer box for Piara Singh and was paid Re. 1/- by him. Gian Singh, P.W. 23 also said that he had been asked by Piara Singh to make Phaties about 4'' in length for the preparation oi the box. Amrik Singh, P .W. 23 has also given corroborative evidence. Piara Singh had met him at Amritsar on 3rd October, 'J 966 and told him that Piara Singh had despatched the parcel. The testimony of Sri Niwas, P .W 27 is crucial in this case. He has corroborated the statement of the approver in important particulars.

The evidence of Sri Niwas. was criticised on behalf of the appellant 'as Sri Niwas made his statement to the police after some delay viz., on the 17th October, 1966.

On this point Sub-Inspector Mohinderpal Singh explained that earlier on 9th October, 1966, he tried lo contact Sri

Niwas, but the latter was not found in his seat in Phagwara Chowk.

He made another effort to trace him en 13th October, 1966, but it was equally fruitless. It is tr.ue that the Sub-Inspector could have made more strenuous efforts to trace out Sri Niwas, but he was going to other places also in connection with the invetigation. The High Court has held that merely on account of this delay the statement of Sri Niwas could not be rejected. On

the contrary the High Court has found the evidence of Sri Niwas to be true and reliable. It is maJnifest that there is sufficient corro- H' ?oration of the evidence of the approver so far as the appellant

is concerned and the argument of Mr. Mitter must be rejected on this aspect of the case.

(I) A.LR. 1957 S.C. 637.

Lastly, it was contended that the hand grenade could not be .arrainged in the manner stated by the approver, but that the hand grenade was intact and when the parcel was opened, some one may have caused it to explode. In this connection Mr. Mitter referred to the evidence of expert Mr. Murti P.W. 6. According to Mohinder Singh, only one hole was made 1n the inner box through which the wire fitted in the grenade in place of the safety pin was taken out. The argument of the appellant was that two holes should have been made in the inner, box, but according to the approver only one hofo was made.

It was also said that according to the report iX the expert, bent steel wire was found .in the first parcel whiCh was sent to him. It was argued that the report of the expert was not consistent with the evidence of the approver who said that the safety pin of the wire had been removed. It was suggested that Mohinder Singh would have probably thrown the safety pin and not kept it in the box. The High Court has examined in detail the argument of the appellant on-this point and reached the conclusion that the statement of the approver with regard o the packing of the hand grenade should be accepted as true. The question involved is one of appreciation of evidence and nc't a question of Jaw. In any event, we see no sufficient reason for taking a view different from that of the High Court in this matter.

For these reasons we hold that there is no merit in these appeals

which are accordingly dismissed. E

Y.P.

Appeals dismissed.

PIARA SINGH

STATE OF PUNJAB

January 8, 1969

C. SHAH

GROVER, JJ

s. 302

I.P.C

Explosive Substances Act

J. P. Mitter

J. C. Talwar

R. L. Kohli

Kartar Singh Chawla

R. N. Sachthey

Ramaswami

Piara Singh

Nand Lal Sehgal

1st July, 1967

section 302

section 3

Explosive Substances Act

section 326

Indian Penal Code

Nand Lal Sehgal

section 302

sections 109 and 113

section 4

Explosive Substances Act

Punjab and Haryana High Court

State of Punjab

Punjab and Hary.ana High Court

3rd Novemoor, 1967

Ram Sahai

1st October, 1966

J agatjit Textile Mills

Phagwara

Ram Sahai

4th October, 1966

Ram Labhaya

Radhey Sham

Shadi Lal

Charanjit Lal

Chanan Singh

Moti Lal

Madhu Parshad

Tara Singh

Ram Dass

Muni Lal

Naunihal Singh

Amritsar

Mohinder Singh

8th October, 1966

Amrik Singh

Mohinderpal Singh

Piara Singh

3rd October, 1966

Amrik Singh

7th October, 1966

Niwas

Mohinder Singh

section 337

Code of Criminal Procedure

Sehgal

Ram Singh

Nazar Singh

Chachoki

2nd October, 1966

Ram Sabai

Piara Smgh

3rd

Octoer, 1966

P1.ara Sgh

Prara Singh

Gian Singh

Sardara Singh

S. 27

ss. 302 and 326

I.P.C

section 3

Explosive Substances Act

Mitter

N and Lal Sehgal

s. 403

s. 403(2)

Cr.P.C

Dixon

Wright

Herron

Maguire

Indian Evidence Act

A.SJ. Pritam Singh

Longia

3rd October, 'J 966

Niwas

17th October, 1966

Mohinderpal Singh

9th October, 1966

13th October, 1966

Murti


MUDIGOWDA GOWDAPPA SANKH & ORS.

RAMCHANDRA RA VAGOWDA SANKH & ANR.

January 9. 1969

(J. C. SHAH. V. RAMASWAMI AND A. N. GROVER, {J.J

Hindu Law--Partition-Partition deed s/lani and nominal-Effect of- - Joint fa1nily having nucleus-Later acquisitions-Income fro1n nucleus. cdequate for making acquisitions-If cati bi presumed to be joint family properties-Alienation-Challenge of in plaint.

A joint family .consisting of two brothers G and A and their wives,. sons and daughters was possessed of joint family properties. Between the years 1911 and 1940 several other properties were acquired. In 1930, the son of A was taken in adoption by G. The adopted son died in 1944, and both the brothers denied the adoption and purported to effect a parti, tion. In the partition deed the lands were unequally divided between the brothers, G getting twice as much as A, but the brothers continued to be in joint possession of the. lands. There was no division of their house at all and the brothers had a joint mess even after the date of partition, After the partition-deed was executed the two brothers executed various alienations.

The first respondent. claiming to be the adopted son of another son of A, filed a suit in 1954 after the death of G and A, challenging the partition deed as fraudulent, that it was never acted upon and was only intended to defeat the 'rights of two widows in A's family. The appellants contested the suit and supported all the alienations.

The trial court decreed the suit except \Vith respect to one sale deed; and the High Court, in appeal, held in favour of the first respondent even, \Vith respect to that item.

In appeal to this Court, it was contended that : ( 1) The partition deed: \Vas not a sham transaction; (2) Even if the partition deed was bogus. there was in law a severance of joint family status; (3) The later acquisitions between the years 1911 and 1940 were not joint family properties but belonged exclusively to G; and ( 4) The High Court should not have reversed the decree of the trial court with respect to the sale ded, bed;:tuse it was not challenged in the plaint. ·

HELD : ( 1) The scheme of the partition was to deprive the widows in A's family of any claim for maintenance out of the joint family properties but to limit their rights to the smaller share given to A~ In viey,.-·

of the state of law before the 'decision in Anant v. Shankar, A.I.R. 1943 P.C. 196 the two brothers decided to execute a bogus deed of pai:tition in order to avoid any legal consequences which may follow if either of the widows should take a son in adoption.

Therefore, the. deed was not genuine. [249 D-G; 250 F-GJ

(2) In order to operate as a severance of joint status, it is necessary A that the expression of intention to separate himself, by the particular member, must be definite and unequivocal.

If the expression of the intention is a mere pretence or sham, there is, in the eye of law. no separation of the joint family status. [251 C-D]

Merla Ramanna v. Chelikani Jagannadha Rao, A.I.R. 1941 P.C. 48, B applied.

(3) ihere is no presumption that a joint Hindu family, because it is joint, possesses any joint family property or if there was a nucleus, any acquisition made by any member of the joint family is joint family pro~ perty.

It is only after the possession of an GdeqUate nucleus is shown that such a presumption is drawn and the onus shifts on to the person C who claims the property as a self-acquisition to make out his claim.

In the present case, the income from the nucleus was more than sufficient for the purchase of the .various items acquired later, and there was no proof that G had any separate income of his own oui. of which he could have acquired those items.

Therefore, the late'r acquisitions were also joint family properties. [251 E-G; 252 C-D, E-F] D

Appalaswami v. Suryanara, vanamurti, I.LR. [1948] Mad. 440, (P.C.) applied.

( 4) The first respondent challenged all the alienations in the plaint and the High Court was right in holding that the sale was without consi

deration and hence was not genuine and was not binding on the first respondent. [253 D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 339 of 1966.

Appeal by special leave from the judgment and order dated F December 12, 1962 of the Bombay High Court in First Appeal No. 436 of 1967.

G. L. Sanghi and A. G. Ratnaparkhi, for the appellants.

S. T. Desai and /. N. Shroff, for the respondents.

The Judgment of the Court was delivered by

Ramaswami, J. This appeal is brought by special leave from

the judgment of the Bombay High Court dated 12th December, 1962 in First Appeal No. 436 of 1958 by which the High Court H dismissed the appeal and allowed the cross-objections filed by the respondents in the said appeal.

The relationship of the parties will appear from the following pedigree :

Neneppa

I I I bib Gowdappa = 1. Kas a.I Apparaya=Sidgajawa II (died on (wife of Apparaya 20-12-53) died during life

2. Sidgangawa I

(Widows of Gowdappa) I time ol Apparaya)

Jangabai (widowed daughter of Gowdappa) Appellant No. S

Nenebpa II NLpa II RcvgLa SubJ.drabai (adopted in =Sidgangawa (daughter 1930 died Ill (wife of Apparaya) in 1944) of Revgowda) Appellant I

Respondent No. 3.

No. 2 Neelagangawa=Mudlgowda / (daughter of (alleged to Ncneppa II) have been Ramchandra (adopted Appellant adopted to Revgowda by No. 2. by Oowdappa Sidgangawa III) in 1948; and ResJ>ondent No. I became the since deceased. husband of Neelagangawa)

Appellant No. I.

Goudappa had one daughter by name (}angabai, while Apparaya had three children (i) Nenappa II, (ii) Ravagowda and (iii) Subhadrabai. In 1930 Nenappa II was given in adoption to Goudappa. He had two wives Kashibai and Sidgangawa.

Revagowda married another Sidgangavva. In 1938 Revagowda was murdered.

Thereafter Goudappa and Apparaya purported to effect a partition between themselves. At the time of the death of Nenappa I, six plots of lands belonged to the joint family. Five of these plots are survey Nos. 43, 59, 65, 66 and 69 measuring 137 acres and 15 gunthas and assessed at Rs. 126/12/- and are located in Borgi Khurd. The other plot survey No. 77 which was in Borgi Budruk measured 14 acres and 24 gunthas and was assessed at Rs. 16/14/-. The total area of the ancestral lands was, therefore,. 151 acres and 27 gunthas assessed at Rs. 143/. Between 1911 and 1940, 12 other pieces of lands in both these villages measuring 137 acres and 39 gunthas and assessed at Rs. 18/10/- were acquired in various names. After Nenappa TI

was murdered in 1944, both the brothers denied his adoption by Goudappa and purported to effect a partition on 28th April, 1944.

After the partition deed was executed various alienations were made by the two brothers. On 25th September, 1944 by Ex. 161 Goudappa gifted S. Nos. 61 and 62 of Borgi Budruk and Survey No. 45 of Borgj Khurd to defendant No. 4, Subhadrabai. By Ex. 162, dated 1st October, 1946 Goudappa made a gift of plot survey Nos. 62 and 63 of Borgi Khurd and Survey No. 11/3 of Borgi Budruk to defendant No. 3 who is the daughter of Nenappa II.

On 20th April, 1948 by Ex. 159 Apparaya sold survey Nos. 77 and 43 to defendant No. 3 for a sum of Rs. 5000/. On the same day by Ex. 160 Goudappa sold survey No. 79 for Rs. 1,000/- to Apparaya. Again on 17th May, 1948, by Ex. 158 Goudappa made a gift of plot survey Nos. 59 and 60 of Borgi Khurd to defendant No. 3. By Ex. 117, dated 7th December, 1948 Goudappa by a Vardi transferred survey No. 66 of Borgi Khurd, to defendant No. 6 his widowed daughter. On 15th December. 1948 Goudappa gave a portion of plot No. 96 to Sidgang, avva, wife of Apparaya for maintenance. By Ex. 166, dated 25th May, 1950, Goudappa and .defendant No. 1 together sold to defendant No. 5 portion of survey No. 23 for a sum of Rs. 3,000/. Finally on 19th November, 1953, Apparaya executed his last will which is Ex. 168 whereby he bequeathed survey No. 79 to defendant No. 4 and one house to his daughter defendant No. 4. The plain

tiff claimed to be the adopted son of Revagouda and brought the present suit on 10th June, 1954 challenging the partition deed as fraudulent. He alleged that it was intended to defeat the rights of the widows, that it was never acfed upon and that the family continued to be joint. The defendants contested the suit on the ground tb.-t the partition deed Ex. 157 was a genuine transaction and was acl.:d upon, that Apparaya and Goudappa 1'ecame separate in status and managed their properties separately. The defendants supported all the alienations as being genuine and effective. The trial. court came to the conclusion that the 12 pieces of lands which were acquired between 1911 and 1940 formed oart of the joint family properties, that the pariition deed Ex. 157 was not intended to be acted upon but was executed to defeat the rights of the widows. The trial court held that none of the alienations except the sale deed Ex. 159 executed by Apparaya in respect of survey plots Nos. 43 and 77 in favour of defendant No. 3 was binding on the plaintiff. The trial court accordingly made a decree for partition with appropriate direciions.

The defendants took the matter in appeal to the High Court. The plaintiff also filed a cross-objection with regard to the sale-deed Ex. 159. By its judgment dated 12t11 December, 1962, the High tourt dismissed the . appeal of the defendants and allowed the cross-objection of the plaintiff holding that the sale-deed Ex. 159 regarding survey plots Nos. 43 and 77 was also not binding upon the plaintiff.

; ....

A The first question to be considered in this appeal is whether the partition deed executed by Goudappa and Apparaya on 28th April, 1944 was a sham transaction and not intended to be elfective. Both the trial court and the High Court have reached a concurrent finding after an elaborate examination of the evidence that the partition deed was not genuine, and that it was effected for an B ulterior purpose in order to defeat the rights of the widows in the joint family. It is manifest that the finding of the lower courts upon this question is essentially a finding upon a question of fact, and in an appeal by special leave it is the normal practice of this Court to accept such a concurrent finding of fact as correct. It was, however, contended by Mr. Sanghi that the finding of the lower courts is vitiated in law because there was no evidence in C support of that finding. In our opinion, there is no justification for this argument. In the partition deed it is recited that the lands were partitioned with the help of Panchas but the names of Panchas are not mentioned in the document and none of the Panchas has signed it. As to the division of the properties, Goudappa has been given 101 acres and 39 gunthas while Apparaya has been given D 50 acres and 10 gllllthas only.

The total assessment of lands given to Goudappa is Rs. 82/3/ - while the assessment of the lands given to Apparaya is Rs. 61/7/-. There appears to be no division of the house at all, since nothing is mentioned in the partHion deed about the house, The unequal division of the lands in the so called partition deed is a strong circumstance which indicates that E the transaction was not genuine. It should also be noticed that at the time of the partition deed there were widows of two sons in the family, Nenappa the second and Revagouda. At about this time, after Nenappa's death, the adopiion of Nenappa by Goudappa was denied. The scheme of the partition was, therefore, to deprive the two widows of any claim for maintenance out of the joint family properties but to limit their rights to about 50 F acres of land given to Apparaya. There is also evidence that after the partition deed, the two brothers coniinued to be in joint possession of the lands and they lived joint in the same house as before.

It appears t~t the two brothers had a joint mess even after the date of partition. It was contended by Mr. Sanghi that there was n_o evidence that. the two. bothers con_tinued to be in joint posses- G s1on of the lands. But 1t 1s not possible to accept this argument as correct. On a perusal of the evidence it is apparent that P.Ws. 1 to 4 all supported the case of the joint possession of the two brothers and their evidence has been believed by both the lower courts. There is another circumstance which strongly lends support of the plainiiff's case on this point. It was at one time H supposed that the doctrine of Mitakshara law was that if the last surviving coparcener died and the property passed to his heir such as a widow or a collateral, the power of the widow of a predeased 7Sup, CI/69~17

coparooner to adopt was ; f an end. (Chandra v. Gojarabai(') and Adivi Suryaprakasarao v, Nidamarty Gangaraju( 2 ). The cases on this point were considered in 1936 by the Full Bench of the Bombay High Court in Balu Sakharam Powar v. Lahoo Sambhaji Tetgura( 8 ). It was held in that case that where a coparcenary exists at the date of the adoption the adopted son becomes a member. of the coparcenary, and takes his share in the joint property, but where the partition takes place after the termination ol the coparcenary by the death, actually or fictionally, of the last surviving coparcener, the adoption by a widow of a deceased coparcener has not the effect of reviving the coparcenary and does not divest property from the heir of !he last surviving coparcener (other than the widow) or those claiming through him or her.

But the decision of the Full Bench of the Bombay High Court was expressly over-ruled by the Judicial Cominittee in Anant

v. Shankar('). It was held that the power of a Hindu widow does not come to an end on the death of the sole surviving coparcener.

Neither does it depend upon the vesting' or divesting of the estate, nor can the right to adopt be defeated by partition between the coparceners. The rights of the adopted son relate back to the date of the adoptive father's death and the adopted son must be deemed by a fiction of law to have. been in existe; nce as the son of the ' adoptive father at the time of the latter's death. If, therefore, there was a coparcenary in existence when the adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequeni partition among the remaining members, an adoption validly made by the widow of the deceased coparcener would have the etfoct of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second case and enabling the adopted son to claim a share in the family properties as if they were still . joint. The decision of the Judicial Committee in A7!llnt v. Shankar(') was unexpected and revolutionary in character.

It is likely that in view of the fiuid and uncertain state of the law on this point the two brothers Goudappa and Apparaya decided to execut~ a bogus deed of partition in order to avoid any legal consequence which may follow if either of the widows should take a son in adoption. We are accordingly of the view that there is proper evidence to support the concurrent finding of the lower courts and there is no reason to disturb that finding.

It was also contended on behalf of the appellants that even though the partition deed was bogus there was in law a severance of joint family status and the family could not continue to be joint

(1) I.L.R. 14 Born. 463.

(3) , A.I.R. 1937 Born. 279.

(2) I.LR. 33 Mad. 228.

(4) A.l.R.1943 P.C. 196.

after 20th April, 1944 which was the date of the partition deed. , In other words, the argument was that there was a declarati1;1n by • the coparceners of their intention to separate and that declaration was sufficient to put an end to the joint family status of the two brothers.

In our opinion, there is no substance in this argument.

It is now well established that an agreement between all the coparceners is not essential to the disruption of the joint family status, but a definiie and unambiguous indication of intention by one member to separate himself from the family . and to enjoy his share in severalty will amount in law to a division of status. It is immaterial in such a case whether the other members assent or pot.

Once the decision is unequivocally expressed, and clearly intimated to his co-sharers, the right of the coparcener to obtain and possess the share to which he admittedly is entitled, is unimpeachable. But in order to operate as a severence of joint status, it is necessary that the expression of intention by the member separating himself from the joint family must be definite and unequivocal. If, however, the expression of intention is a mere pretence or a sham, there is in the eye of law no separation of the joint family status. See for instance the decision of the Judicial Committee in Merla Ramanna v. Chelikani Jagannadha Rao & Ors.(').

We pass on to consider the next question arising in this appeal, viz. whether the High Court was right in holding that the 12 pieces of lands were joint family properties and were not the •self acquisition of Goudappa. The case of the appellants was that these lands were self-acquisition of Goudappa, but the respondents contended that they were joint family properties. The law on this aspect of the case is well settled. Of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however, subject to the limitation that t!Je joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleu~. is shown, that the onus shifts on to the person who claims the property as self acquisition to affirmatively make out that the property was acquired without any aid from the family estate. Jn Appalaswami v. Suryanarayanamurti( 2 ), Sir John Beaumoot observed as follows :-

''The Hindu. law upon this aspect' of the case is well settled. Proof of the existence of a joint' family does

fl) A.J.R, 1941 P.C. 48.

(2) l.L.R. (1948) Mad. 440. (P.C.)

not lead to the presumption that property held by any member of the family is joint, and the burden rests

upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.

See Babubhai Girdharlal v. Ujamlal Hargovandas(1 ), Venkataramayya v. Seshamma( 2 ) and Vythianatha v. Varadaraja( 1 ).

In the present case, both the lower courts have found that there was an adequate nucleus of joint family properties from which the acquisitions could have been made. It is admitted that when Nenappa I died, the joint family was possessed of 151 acres and 27 gunthas of land assessed at Rs. 143. It is further admitted by defendant No. 1 that out of the four ancestral lands, one land was Bagayat land. Witnesses on behalf of the plaintiff assessed the income between Rs. 5,000 to Rs. 6,000 before the first world war.

It is also conceded that the family had between 8 to 12 bullocks for the purposes of cultivaµon and most of the lands were cultivated personally by the family members. Between l911 and 1940 12 other pieces of lands measuring 137 acres and 39 gunthas assessed at Rs. 18/10/- were acquired in various names. The total price of the sale deeds is Rs. 4800 spread over a period of 30 years. In view of this evidence, we see no reason to differ from the finding of the lower courts that the income from the nucleus was more than sufficient for the purchase on the different dates. The respondents alleged that these properties belonged to the joint family, and unless it is shown by the appellants that Goudappa carried on any other business and that these properties were acquired out of that income, the appellants must fail.

The case of defendant No. 1 was that Gou.dappa made these acquisitions out of his business.

D. W. 1 did not however state the nature of the business. In cross-examination he said that Goudappa was trading 1n cotton and this information he had got from Goudappa after his adoption. D.W. 1 was however unable to say with whom Goudappa had dealings in cotton. If Goudappa was doing cotton business it should not have been difficult for the defendants to have produced more direct evidence of persons with whom he had business dealings.

The High Court has rejected the evidence of D.W. 3, Imamsaheb as worthless. It is manifest that there is no proof that Goudappa had any separate income of his

(l) l.L.R. [1937] Born. 708.

(2) l.L.R. [1937] M, d. 1012.

(3) I.L.R. [1938] Mad. 696.

own out of which he could have acquired the 12 pieces of land.

The lower courts were, therefore, right in reaching the conclusion that the 12 pieces of lands belonged to joint family and that the plaintiff was entitled to a share thereof in the partiuon.

It was lastly contended on behalf of the appellants that in any case the High Court should i!llOt have allowed the cross-objection of the respondents with regard to survey plots Nos. 43 and 77.

Reference was made to paragraph 5 of the plaint in which there was no specific mention of the sale deed executed by Apparaya in favour of defendant No. 3 of survey plots Nos. 77 and 43. But paragraph 4 should be read along with paragraph 7 of the olaint in which the plaintiff challenged the alienations made in favour of the several parties to the suit and had claimed relief in respect of all the lands mentioned in the schedule to the plaini. Survey plots Nos. 77 and 43 are expressly mentioned in the schedule. It is, therefore, not possible to accept the contention of the appellants that the plaintiff had not challenged the sale deed Ex. 159 with respect to survey plots Nos. 77 and 43. The High Court has pointed out that defendant No. 3 was a minor at the time of sale, that Goudappa had acted as her guardian and thai defendant No. 3 had no property of her own. The High Court therefore rightly held that the sale must be held to be without consideration and not genuine and was, therefore, not binding on the plaintiff.

For these reasons we hold that the judgment of the Bombay High Court dated 12th December, 1962 is correct and this appeal must be dismissed with costs.

V.P.S.

Appeal dismissed.

MUDIGOWDA GOWDAPPA SANKH & ORS

RAMCHANDRA RA VAGOWDA SANKH & ANR

January 9. 1969

C. SHAH. V. RAMASWAMI

A. N. GROVER

G. L. Sanghi

A. G. Ratnaparkhi

S. T. Desai

N. Shroff

Ramaswami

12th December, 1962

Neneppa

Sidgangawa

Jangabai

Neelagangawa=Mudlgowda

Oowdappa Sidgangawa

Neelagangawa

Goudappa

angabai

Apparaya

Ravagowda

Subhadrabai

Goudappa

Kashibai

Sidgangawa

Revagowda

Sidgangavva

Nenappa

28th April, 1944

25th September, 1944

Borgi Budruk

Borgj Khurd

Subhadrabai

1st October, 1946

Borgi Khurd

20th April, 1948

Apparaya

15th December. 1948

Sidgang

19th November, 1953

Revagouda

10th June, 1954

12t11 December, 1962

Sanghi

Bombay

Bombay High Court

John Beaumoot

Nenappa I

Gou.dappa

Imamsaheb