.-.-J

GOVIND MEHTA v.

STATE OF BIHAR May 7, 1971

[C. A. VAIDIALINGAM AND A. N. RAY, JJ.J

Code of Criminal Procedure, 1898, s. 195(1)(c), 476--Transfer applica tions before District Magistrate of cases pending before magistrate-Magistrate charged with offence under s. 471 for committing forgery on the order sheets of the cases on complaint by District Public Prosecutor-AppUcability of bar of s. 195(1) (c)-Magistrate cannot be said to be "party 10 any

prar:eeding in any court."

When the appellant came to know that transfer applications had been filed in respect of certain cases on his file he recorded orders on the ordersheets , of the cases making serious allegations against the District Magistrate before whom_Jhe transfer applications were pending to the effect that the latter was attempting . interfere with the course of justice in the proceedings connected with the cases.

The Additional District Magistrate, who heard the transfer applications sent a report for initiation of pro .. ceedings against the appellant for having committed forgery in the order sheets. On a complaint by the District Prosecutor the appellant wa'J COpl

mitted to the sessions to take trial under ss. 167, 466 and 471 Penal Code.

The appellant filed applicatiOns questioning the legality of the trial on the grounds that the mandatory provisions of ss. 195 and 476 of the Code of Criminal Procedure were not complied with.

These were rejected by the Sessions Judge. Revisions to the High Court were also dismissed. In appeal to this Court it was contended : (i) the authoriiy to file the complaint against the appellant was the Court to which the appellant was subordinate at the material time as is mandatory under s. 195(1)(b) and (c) and, therefore, cognizance could not be taken of the complaint filed by the District Prosecutor; and (ii} there was violation of the mandatory provisions of s. 476 of the Code, inasmuch as the complaint Was not filed by the Additional District Magistrate.

Dismissing the appeal,

HELD: (i) The High Court has, after analysis and very elaborate consideration, come to the conclusion that the charge framed under s. 167 of the Penal Code is justified. Therefore, the contention that with a view to evading tbe .bar of cl. (b) of s. 195(1) the prosecution adopted the device of not charging the appellant under s. 193, Penal Code, cannot be accepted. As the charge has been framed under s. 167, the bar under s. 195(1)(b) and le) has no application. [782F, G]

(ii) The offence under s. 466, Penal Code, is not covered by els. (b) or (c) of s. 195(1). Therefore s. 195 does not operate as a bar in respect of this offence. [783A]

(iii) Thoueh s. 471 of the Code is taken in by cl. (c) of s. 195(1), for the clause to operate as a bar to taking cognizance of an offence under s. 471 it is essential that the offence must be alleged to have been commit H ted "by a party to any proceeding in any Court". Merely on the basis that the applications for transfer of certain cases pending before the appellant had been filed making allegations against the appellant will not make the

A appellant a party to those proceedings.

He was functioning as Magistrate and had no personnel interest in the outcome of the transfer applications.

Therefore, cl. (c} of s. 195(1) also does not bar the jurisdiction of the magistrate to take cognizance of the offence under s. 47 L of th(" Code.

[783B, G]

(iv) Because s. 195(1) (b) or (c) does not apply \o the case of the appellant section 476 of the Code does not come into the picture.

Even B otherwise, the section does not apply for the reason that the order of t..ie ;\dditional District Magistrate clearly sho\vs that all the findings recorded against the appellant were only reasons for transferring the cases from the file of the appellant ; the Additional District Magistrate himself had nol taken any action as contemplated under s. 476 of the Code.

[784B, F]

CRIMINAL APPELLATE

JURISDICTION : Criminal Appeal No. l54 of 1969.

Appeal by special leave from the judgment and order dated December 16, 1968 of the Patna High Conrt in Criminal Revision Nos. 345 end 346 of 1968 and Criminal Misc. Nos. 248 and 24'> ot 1968.

Jyoti Narain, S. N. Misra and U. P. Singh, for the appellant.

R. C. Prasad for the respondent.

The Judgment of the Court was delivered by

Vaidialingam, J.-The accused in this appeal, by special leave, challenges the common order dated December 16, 1968 passed by the Patna High Court dismissing Criminal Revision Nos. 345 and 346 of 1968 and the connected Criminal Miscellaneous Petition Nos. 248 and 249 of 1968. The Criminal Revisions and the Criminal Miscellaneous Petitions were a II directed against the orders passed by the crimiml courts directing that the appellant should stand his trial for otkoces under Sections 167. 466 and 47! of the Indian Penal Code 01erei'iiatter called the Penal Code).

The facts giving rise to the Criminal Revisions and the Criminal Miscellaneous Petitions may be. stated : In 1963 the appellant was posted at Patna as Magistrate, !st Class. with special powers to try Bad Livelihood Cases (which are called B. L. Cases) •mder Section l 10 of the Code of Criminal Procedure (hereinafter called the Code).

In September 1963 two B. L. Cases Nos. 4 and 5 of 1963 had been started against Kailash Gape and Rarnprit Gope and others respectively.

Those cases were transferred to the file of the appellant for disposal.

At the time of the transfer of cases, the accused persons had already been enlarged on bail.

But the appellant claims to have noticed some defects in th" bail bonds furnished by those persons.

He gave directions that the defects in the bail bonds should be rectified.

On the parties failing to rectify the defects, the appellant cancelled the bail bonds and remanded them to jail custody.

The parties against whom

OOVIND v. BIHAR (Vaidialingam, J.)

the B. L. Cases had been started, filed two applications before the District Magistrate, Patna for transferring their cases from the file of the court of the appellant to the file of another Magistrate on the ground that they seriously apprehended that they will not get justice at his hands.

After coming to know of the filing of the transfer applications, the appellant recorded two orders on the order sheets of cases Nos. 4 and 5 making very serious allegations against the District Magistrate before whom the transfer applica tions were pending to the effect that the latter was attempting to interfere with the course of justice in the proceedings connected with the case Nos. 4 and 5.

The appellant is alleged to have inserted these two orders in the order sheets of the two cases long after the last orders were passed in those cases to make it appear that the remarks against the District Magistrate had been made much earlier.

The District Magistrate called for a report from the appellant and he sent the records or the proceedings to the District Magistrate with his report.

In his report he had also stated that the matter is of great importance and the entire case and the order sheets should be kept intact for favour of any action that the High Court may consider fit and proper.

In view of the allegations made by the appellant against the District Magistrate mentioned in the order sheets, the latter tranSferred the transfer applications to the file of the Additional District Magistrate on November 11, 1963.

The Additional District Magistrate after hearing the parties transferred both the cases from the file of the appellant to another Magistrate and sent a report to the District Magistrate for initiation of proceedings against the appellant for having committed forgery in the order sheets in both the B. L. Cases.

The report of the District Magistrate was forwarded to the State Government, who accorded sanction for prosecuting the appellant.

The Senior District Prosecutor, Patna filed on December 21, 1964 a complaint in the Court of the Sub-Divisional Magistrate, Patna Sadar against the appelhnt. In the complaint it was alleged that the appellant has committed offences under Sections 167, 465 466 and 471 of the Penal Code, The Sub-Divisional Magistrate after taking cognizance of the offences alleged to have been committed by the appellant, transferred the case to the file of the Magistrate, !st Class, Patna, initiating two commitment proceedings in respect of the aJl.eed

offences said to have been committed in each of the B. L. Cases.

After examining the witnesses and perusing the documents, the Magistrate, !st Class, committed the appellant to the Court of Sessions in both cases for trial under Sections 167, 466 and 471 of

.. the Penal Code.

The two Sessions Cases were accordingly started in the court of the Assistant Sessions Judge, Patna and charges were framed

~UPRBME COURT REPORTS [1971] SUPP. s.c.R.

against the appellant under Sections 167, 466 and 471 of the Penal Code.

The appellant filed two petitions before the Assistant Sessions Judge that trial could not be proceeded with as the mandatory provisions of Sections 195 and 476 of the Code have not been com plied with.

In fact his prayer in the applications filed before the Assistant Sessions Judge was that he should be acquitted.

The Assistant Sessions Judge by his order dated November 22, 1966 rejected the applications filed by the appellant and declined to consider the competency of trial u a preliminary issue at that stage.

The appellant filed Criminal Revisions before the Sessions Judge against the order made by the Assistant Sessions Judge with a prayer to quash also the commitment orders of the Magistrate.

He had also made a prayer for a reference to be made to the High Court to quash the proceedings pending before the Assistant Sessions Judge.

The Sessions Judge rejected the applications filed by the appellant.

In consequence the appellant filed before the High Court Criminal Revision Nos. 345 and 346 of 1968 against the orders of the Sessions Judge declining to quash the commitment proceedings and to IJ1aking a reference to the High Court in the two Sessions Cases against the appellant. He also filed Crimi nal Miscellaneous Petitions Nos. 248 and 249 of '1968 to quash the orders of the Magistrate, !st Class to stand his trial for offences under Sections 167, 466 and 471 of the Penal Code.

The High Court rejected both the Criminal Revisions and the Criminal Miscellaneous Petitions.

Mr. Jyoti Narayan, learned counsel for the appellant, has urged that the entire proceedings initiated against the appellant were without jurisdiction inasmuch as the Sub-Divisional Magistrate was not competent to take cognizance of the complaint filed by the Senior District Prosecutor.

According to the learned counsel the authority to file the complaint against the appellant was the court to which the appellant was subordinate at the material time as is mandatory under Section 195 (I) (b) and (c) of the Code.

His further contention is that there has been a violation of the mandatory provisions of Section 476 of the Code. The mere sanction given by the State Government under Setcion 197 of the Code is not, in the circumstances, sufficient to give jurisdiction to the Magistrate to take cognizance of the offences alleged against the appellant.

On the other hand, Mr. R. C. Prasad, learned counsel for the State urged that the offences alleged against the appellant are under Sections 167, 466 and 471 of the Penal Code. None of the>~ sections are covered by Section 195(1) (b) of the Code.

Section 466

GOVIND v. BIHAii. (Vaidialingam, J.)

is not covereJ by Clause (c) of Section 195(1) of the Code.

Section 471, is, no doubt, taken in by the said clause, but in order to attract that clause it is necessary that the offence alleged should have been committed "by a party to any proceeding in any court ............... ". If the conditions mentioned in clause (c) are tified,

then the complaint should be made in writing by the court before whom the offence is committed or by some other court to which such court is subordinate. The appellant can by no means be characterized to be a pariy to any proceeding in any court, in respect of the offence under Section 471 alleged against him. Therefore, there is no violation of either Clause (b) or (c) of Section 195 (!) of the Code.

Section 476 of the Code also, according to Mr.

Prasad, does not apply as the conditions stated therein do not .exist in the present case.

Briefly the allegations in the complaint are as follows. The appellant has recorded serious allegations in the order sheets against the then District Magistrate, Patna, Sri R. C. Sinha and the counsel Sri Mathura Sharma, appearing on behalf of the accused in the B. L. Cases.

The said allegations and certain other entries were inlerpolations and forgery. The a; pellant has framed incorrect documents with intent to cause in1ury and he has committed forgery in judicial records"_and used the forged documents as genuine with intent to cause injury to others.

The said entries, interpolations and forgeries have been committed by the appellant between November 7, 1963 and November 11, 1963 after the appellant received the order dated November 6, 1963 of the District Magistrate Patna directing him to submit a report in respect of the allegations made against him in the transfer applications filed by the parties in the B. L. Cases.

The complaint alleged that the appellant has committed offences under Sections 167, 465, 466 and 471 of the Penal Code.

We have already indicated that the appellant has been committed to the Sessions to take his trial only under Sections 167, 466 and 4 71 of the Penal Code.

According to Mr. Jyoti Narayan, the point of time at which the .legalit¥ of the cognince taen by the Magistrate to be adjudged 1s the time when cogmzance 1s actually taken under Section 190 G of the Code and applying that test in the present case, it will be seen that there has been a breach of Seeton 195 (!) (b) and (c) and Section 476 of the Code.

The proposition that the point of time at which the legality of the cognizance taken is to be adjudge~ is the ime when cognizance is actually taken is laid down by 1~1s Court tn M. L. Sethi v. R. P. Kapur and another ('). The H Magistrate has normally got jurisdiction to take cognizance under - - (IJ f1967] l S. C. R. 520.

SUPRBMB COURT REPORTS

(1971] SUPP. S.C.R.

Section 190 of the Code in the circumstances enumerated therein.

Section 195 is in fact a limitation on the unfettered powers of a magistrate to take cognizance under Seeton 190 of the Code. Therefore, at the stage when the magistrate is taking cognizance under Section 190, he must examine the facts of the complaint before him and determine whether his power of taking cognizance under Section 190 has or has not been taken away by any of the clauses

(a) to (c) of Section 195 (1).

Therefore, it is needless to state that if there is a non-compliance with the provisions of Section 195, the.Magistrate will have no jurisdiction to take cognizance of any of the offences enumerated therein. ·

Mr. Jyoti Narayan on the basis of the decision of this Court reported in Basir-Ul-Huq and others v. The State of West Bengal(') urged that though Section 195 made no bar to the trial of an accused person for a distinct offence disclosed by same facts and which is not included within the ambit of that section, the provisions of that section cannot be evaded by resorting to device of charging a person with an offence to which that section does not apply.

We have already referred to the sections of the Penal Code under which the appellant has been charged. They are sections 167, 466 and 471.

Admittedly, none of these sections a:e covered by Clause (b) of Section 195 (1).

Therefore clause (b) prima fade will not in term bar the jurisdiction of the magistrate to take cognizance of the offence under Section 167 of the Penal Code.

The contention of Mr. Jyoti Narayan is that the various averments made in the complaint will really show that the nature of the offence, if any, committed by the appellant will really come under Section 192 and 193 I. P. C.

If the charge has been framed under Section 193 of the Penal Code, it will squarely fall under Clause (b) of Section 195(1) of the Code.

With a view to really evade the bar of Clause (b) of Sec.lion 195(1), the prosecution has adopted the device of not charging the appellant under Section 193

of the Penal Code, though in effect they want him to be convicted for an offence under Section 193 of .the Penal Code.

We are not inclined to accept this contention of the learned counsel.

The High Court after a careful analysis of the allegations made in the complaint and the materials placed before it and after a very elaborate consideration of the matter has come to the conclusion that the case of the prosecution that the charge framed under Section 167 of the Penal Code is justified.

The High Court has considered the ingredients of the offence under Sections 192 and 193 as well as Section 167 of the Penal Code.

As the charge has been framed under Section 167, the bar under Section 195 (1)

(b) or (c) of the Code bas no application.

We agree with the view

(1) (1953] S. C.R. 836,

GOVJND v. BIHAR (Vaidialingam, J.)

of the High Court that Section 195 (!) (b) or (c) is no bar to the Magistrate taking cognizance for an offence under Section 167.

The offence under Section 466 of the Penal Code is, admittedly, not covered by Clause (b) or Clause (c) of Section 195 (I) of the Code.

Therefore, that section does not operate as a bar in respect of this offence.

Section 471 of the Penal Code, is no doubt is taken in by Clause (c) of Section 195 (!).

But for Clause (c) to operate as a bar to taking cognizance for an offence under Section 471, it is essential that the offence must be alleged to have been committed .. by a party to -any proceeding in any court , ........ " According to Mr. Jyoti Narayan, the appellant must be considered to be a party to the transfer applications filed by the persons concerned in the B. L. Cases, which transfer applications were pending before the District Magistrate.

Allegations have been made against the appellant in the transfer applications and the District Magistrate has called for a report from the appellant in respect of those allegations.

The Additional District Magistrate has inquired into the allegations made in. the transfer applications and given a decision transferring the cases from the file of the appellant to another Magistrate.

All the above circumstances, according to the learned counsel, will make the appellant a party to the proceedings connected with the transfer applications, which were pending ' before the Additional District Magistrate.

We have no hesitation to reject the contention of the learned counset Merely on the basis that the applications for transfer of certain cases pending before the appellant had been filed making allegation against the appellant will not -make the appellant a party to those proceedings.

He was functioning as a Magistraie and he has no personal interest in the outcome of the transfer applications, No doubt when the allegations of prejudice have been made against the appellant, it was his duty as a subordinate court and as an officer against whom allegations have been made to offer explanations in his report sent to by his superior or appellate authority, namely, the Additional District Magistrate. Therefore, Clause (c) of Section 195 (1) again does not bar the jurisdiction of the Magistrate to take cognizance of the offence under Section 471 of the Penal Code.

. The further contention of Mr. Jyoti Narayan is based upon Sectlon 476 of the Code, According to him the Additional District Magistrate has inquired into the applications filed by the counsel for the parties in the B. L. Cases filed against the appellant under Sections 466 and 471 I. P. C. The Additional District

Magistrate inquired intothe matter behind the back of the appellant and after examining the witnesses passed an order on December 16, 1963 holding the appellant guilty of the said offences and

forwRrded a copy of the order to the State Government to sanction criminal and administrative action being taken again:; t the appellant.

The complaint filed in this case suffers from an infir mity inasmuch as it has not been filed by the Additional District Magistrate.

We are not inclined to accept this contention either.

We have already held that Section 195 (I) (b) or (c) of the Code does not apply to the case of the appellant.

If that is so, that finding is enough to hold that Section 476 of the Code does not come into picture.

Even otherwise, Section 476 of the Code will not apply as we will presently show. The records, no doubt, show that the counsel appearing for the parties in the B. L. Cases in connection with the transfer applications filed by them, filed an application before the Additional District Magistrate that action should be taken by him to file a complaint against the appellant for offences under Sections 467 and 471 of the Penal Code. It is ai3o seen

that the Additional District Magistrate has examined certain witnesses and ultimately passed an order on December 16, 1963. This order is a combined order dealing with transfer applications as well as the application filed by the lawyer for filing a complaint

against the appellant.

The Additional District Magistrate has. held that prima facie the appellant must be considered to be guilty of having committed forgery and interpolations in the order sheets and therefore there is a good ground for transferring the B. L.

Cases from his file to another magistrate. Accordingly, the Additional' District Magistrate transferred the B. L. Cases to the file of the Sub-Divisional Magistrate, Patna Sadar.

He had directed that a copy of the order be sent to the State Government for considering the question of giving sanction to take criminal and administrative action against the appellant It may appear prlma facie that the Additional District Magistrate was conducting a preliminary inquiry under Section 476 (1) of the Code. But a perusal of the order passed by the Additional District Magistrate will clearly show that all the findings recorded against the appellant were only reasons for tran•fering the B. L. Cases from the file of the appellaint He himself has not taken any action as contem plated under Section 476 of the Code.

He was merely dealing with the transfer application and incidentally also with the applications filed by the lawyer.

It was on the basis of this order that the State Government ultimately gave the sanction.

The validity of the sanction given by the State Government as such is not chal

lenged.

The contention is that over and above the sanction given by the State Government, the provisions of Section 195 (1) <bl and

(c) and Section 476 of the Code should have been complied with.

We have already held that the bar of either clause (b) or (c) to Section 195 (1) does not apply. From our discussion of the nature of the inquiry conducted by the Additional District Magistrte on the complaint filed by the lawyer appearing on behalf of the parties of the B. L. Cases. it follows that Section 476 of the Code also

GOVIND v. BIHAR ( Vaidialingam, J.)

has .no application.

In our opinion, none of the provisions relied on by the learned counsel operated as a bar to the jurisdiction of

the Magistrate taking cognizance of the complaint in this case.

We have already referred to the fact that in the complaint the offence under Section 465 of the Penal Code was also included.

Section 463 of the Penal Code defines forgery and Section 465. deals with punishment for the said offence.

Section 463 of the Penal Code is, no doubt, taken in by Clause (c) of Section 195 (I) of the Code.

Even on the basis that Section 465 of the Penal Code will also be covered by Clause (c) as the offence under Sec tion 46?• is dealt with therein, nevertheless, Clause (c) will not operate as a bar to the jurisdiction of the Magistrate in taking cognizallce of the said offence as the offence is not alleged to have been committed "by a party to any proceeding in any court ...... "

We hav~ already discussed this aspect in the earlier part of our judgement.

We have also referred to the fact that the appellant has been committed only for the offences under Sections 167, 466 and 471 of the Penal Code.

Section 465 of the Penal Code is not the subject of the committal order.

Any how we have discussed about that section also as the appellant was contesting the jurisdiction of the Magistrate to take cognizance on the basis of Section 195 (!) (b) and (c).

Mr. Jyoti Narayan referred to the contempt proceedings that may be started against the appellant.

The question whether action for contempt can or cannot be taken against the appellant does not at all arise for consideration at present.

Finally. Mr. Jyoti Narayan contended that the complaint does not disclose any offence and therefore the committal proceedings should be quashed.

This contention is absolutely devoid of any merit. Whether the appellant is ultimately found to be guilty or not is a different point. The allegations in the complaint do disclose that the offences alleged against the appellant require in

vestigation.

Therefore, it. cannot be said that no offence is disclosed in the complaint.

This contention is also rejected.

Bc!fore concluding, it must be emphasised that any observations made in this judgment agreeing with the views expressed by the High Court are only for the purpose of dealing with the contentions raised on behalf of the appellant based on the provisions ot Section 195 (I) (b) and (c) and Section 476 of the Code.

In the result the order of the High Court is confirmed and this appeal dismissed.

K.B.N.

Appeal dismissed. 5?-1 S.C. Ind•a/71

J

GOVIND MEHTA

STATE OF BIHAR

A. N. RAY, JJ

Code of Criminal Procedure, 1898

s. 195(1)(c), 476

s. 471

s. 195(1)

ss. 167, 466 and 471

Penal Code

ss. 195 and 476

Code of Criminal Procedure

s. 195(1)(b)

s. 476

s. 167

Penal Code

s. 195(1)

s. 193

Penal Code

s. 167

s. 195(1)(b)

s. 466

Penal Code

s. 195(1)

s. 195

s. 471

s. 195(1)

s. 471

s. 195(1)

s. 47

s. 195(1)

section 476

s. 476

Sections 167

Indian Penal Code

Penal Code

Code of Criminal Procedure

Sections 167, 465

Penal Code

Sections 167, 466 and 471

Penal Code

Sections 167, 466 and 471

Penal Code

Sections 195 and 476

Sections 167, 466 and 471

Penal Code

Section 195

Section 476

Sections 167, 466 and 471

Penal Code

Section 195(1)

Section 466

Section 195(1)

Section 471

Section 471

Section 195

Section 476

Sections 167, 465, 466 and 471

Penal Code

Sections 167, 466 and 4

Penal Code

Section 190

Section 476

Section 190

Section 195

Section 190

Section 190

Section 195

Section 195

Section 195

sections 167, 466 and 471

Section 195

Section 167

Penal Code

Section 192 and 193

Section 193

Penal Code

Section 195(1)

Section 193

Penal Code

Section 193

Penal Code

Section 167

Penal Code

Sections 192 and 193

Section 167

Penal Code

Section 167

Section 195

Section 195

Section 167

Section 466

Penal Code

Section 195

Section 471

Penal Code

Section 195

Section 471

Section 195

Section 471

Penal Code

Sections 466 and 471

Section 195

Section 476

Section 476

Sections 467 and 471

Penal Code

Section 476

Section 476

Section 195

Section 476

Section 195

Section 476

Section 465

Penal Code

Section 463

Penal Code

Section 465

Section 463

Penal Code

Section 195

Section 465

Penal Code

Sections 167, 466 and 471

Penal Code

Section 465

Penal Code

Section 195

Section 195

Section 476


KOCHAN KANI KUNJURAMAN KANI

MATHEVAN KA.llill SANKARAN KANI

May 7, 1971

[K. S. HEGDE .WO A. N. GROVER, JJ.J

Custom-Plea of tribal custom-Whether family custom can be p1'oved.

Kanikkars-Whether govrned byMarumakkathayam law or ."dakkathayees.

The appellant who was the son of the last male holder, was recognis ed by the revenue authorities as entitled to his father's estate. The res pondent, who was the brother of the last male holder, filed two suits claim ing to be the legal heir of the last male holder on the basis that bis brother belonged to the Kanikkar tribe governed by the customary Marumakkathayam law.

The appellant contended that his father was a Makkathayee.

The appellant also filed a suit for eviction of his tenant.

In appeals arising out of the suit, the High Court decided that the family at the last holder was governed by Marumakkathayam law, relying on certain admissions made by the last holder during his life time.

In appeal to this Court,

HELD : The High Court wa~ in error

(a) the evidence in the case and various reports and books, which came into existence at undisputed point of time, showed that the Kanikkar tribe was not governed by any particular custom.

Different families of the tribe followed different customs. some of the Marumakkathayam, some of the Makathayam and others a mixture of the two. f790F-G]

(b) The admissions by the last male holder were not unifor!ll. He sometimes described himself as Marumakkathayee and sometimes :J.s Makkathayee, [790Hl

(c) Further, the question in issue was whether the Kannikar clan v:as aoverned by Marumakkathayam law. The custom pleaded by the respondent was a tribal custom and not a family custom. He could not be per

milted to prove a custom not pleaded by him and such proof would not help him.

[789BJ

rrbereforc, respondents suits WCJ'e dismissed and the appelhhlt W3!; given a declaration in bis suit or eviction, that he was the owner of t:1e properties. The suit was however remanded for decjsion as to his right to evict his teant. in view of the prevailing tenancy laws.]

Abdul Hussain Khan v. Bidi Sona Dero. 45 I.A. 10 and Thakur Gokalchand v. Parvin Kumar!, (1952] S.C.R. 825, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 924 to 926 of 1966.

Appeals by special leave from the judgment and order dated A August 31, 1965 of the Kerala High Court in A. S. Nos. 686 of 1961, 469 of 1964 and S. A. No. 356 of 1962

M. Natesan, N. Sudhakaran and P. K. Pillai, for the appellants

in all the appeals).

M. K. Ramamurthi, J. Ramamurthi and Vineet Kumar, for respondent No. 1 (in C. A. No. 924 of 1966) and respondents Nos. 1 and 5 (in C. A. No. 925 of 1966).

The Judgment of the Court was delivered by

Hegde, J.-A common question arises for decision in these appeals by special leave.

That question is as to who is the legal heir of the deceased Kochan Kani. Kunjuraman Kani, the son of the deceased Kochan Kani (who will hereinafter be referred to as the appellant) claims that he is the legal heir. On the other hand Mathevan Kani (who will hereinafter be referred to as the respon

dent) the brother of the deceased Kochan Kani claims that he is 1he legal heir.

According to the respondent the deceased was governed by Marumakkathayam law but according to the appel lant he was a Makkathaiyee. Both Marumakkatham system as well as Makkathayee system are customary laws.

After the death of Kochan Kani the revenue authorities came to the conclusion that the appellant was entitled to the estate of his father.

Thereafter the respondent filed 0. S. No. 74 of 1956 on the file of the Second Additional District Judge, Trivandrum against the appellant and his step-mother seeking a declaration that he was entitled to the transfer of the registry in his name as the legal heir of the deceased Kochan Kani. That suit was dis missed by the trial court but on appeal the High Court of Kerala reversed the decree of the trial.court and decreed the suit in favour of the respondent.

Civil Appeal No. 924 of 1966 is directed against that judgment.

The respondent and some of the alienees from him instituted

0. S. No. 78 of 1959 against the appellant in the court of Additional Sub-Judge, Trivandrum for a declaration of the title of the respondent in the properties mentioned in that suit and for the possession of the same on the ground that those properties belonged to the deceased Kochan Kani and after his death they had devolved on the respondent That suit was decreed by the trial court.

As. against that decision, the appellant appealed to the High Court of Kerala in A. S. No. 469 of 1964 on its file. That appeal was dismissed.

Thereafter the appellant has appealed to this Court in Civil Appeal No. 925 of 1966.

SUPREME COURT REPORTS [1971] SUPP. s.c.R ..

A Civil Appeal No. 926 of 1966 arises from O. S. No. 436 of 11124 filed by the appellant and his step-mother in the court of Additional Munsiff, Neyyattinkara for the eviction of Isreal Nadar.

That suit was dismissed by the trial court and the appellant was unsuccessful in the first appeal as well as in the second appeal.

B The deceased Kochan Kani belonged to a tribe known as Kanikkars. Originally they were Nomads. They hardly had any immovable property.

But in recent times they have settled down and a few of them have acquired immovable properties. Kochan Kani was one such.

In 0. S. No. 74 of I 956, the respondent pleaded that the Kanikkars tribe follows Marumakkathayam sys- C tern. In paragraph 2 of the plaint he stated :

" .... The Kanis from time immemorial follow Marumakkathayam law and Kochan Kani has in several cases declared himself to be a Marumakkathayee".

He also averred in that plaint that in several decisiom;, the courts have declared that Kanikkars follow Marumakkathayam system.

The custom pleaded by the respondent was a tribal custom and not a family custom pertaining to the family of Kochan Kani.

In 0. S. 78 of 1959, the averments relating to the custom in question are vague.

At any rate even in that suit, the respondent did not put forward any family custom.

Therefore the only question that the courts had to decide was whether the respondent had proved the custom pleaded by him. It is well established that in the matter of custom a party has to plead in specific terms as to what is the custom that he is relying on and he must prove the custom pleaded by him.

He cannot be permitted to /prove a custom not pleaded by him.

In Abdul Hussain Khan

v. Bibi Sona Dero('), the Judicial Committee observed "It is therefore incumbent upon the plaintiff to allege a.nd prove the custom on which he relies." That was also the view taken by this Court in Thakur Gokalchand v. Parvin Kumari(') The reason for this rule is obvious.

Anybody who puts forward a custom must prove by satisfactory evidence the existence of the custom pleaded, its continuity and the consistency with which it was observed. A party against whom a custom is pleaded must have notice as to what case he has to meet. The opposite party apart from rebutting the evidence adduced by the plaintiff may be able to prove that the custom in question was not invariably followed.

He cannot get ready with that evidence without knowing the nature of the custom relied upon by the plaintiff.

Therefore all that we have to see in the present case is whether the respondent has established

(I) 45, I.A. p. 10.

(2) [1952] S. C. R. 825.

the custom pleaded by him viz. the custom of the clan to which the deceased belonged. The learned trial Judge in 0. S. 74 of 1956, after carefully examining the evidence in the case came to the conclusion that the respondent has not proved the custom pleaded by him. He referred not merely to the evidence in the case but also to vari011s reports and books which came into existence at undisputed point of time. On the other hand the learned trial judge in 0. S. 78 of 1959 mainly relying on certain alleged admissions of the deceased Kochan Kani came to the conclusion that he was governed by Marumakkathayam law.

Similar was the view taken by the court in the proceedings arising out of 0. S. 436 of 1124.

The High Court came to the conclusion that so far as Kanikkars tribe is concerned, it was not governed by any single customary law.

Some of the families were Marumakkathees, some are Makkathayees and some are Misravalis.

But at the same time it came to the conclusion that the family of Kochan Kani was governed by Marumakkathayam law.

For coming to that conclusion it solely relied on certain admissions made by Kochan Kani during his life time.

In our opinion the High Court misdirected itself in determining the question before it.

It overlooked the fact that the only plea of the respondent was that Kanik:kars tribe was governed by Marumakkathayam law. He did not plead any family custom.

Before he could succeed in his suits, he had to establish the custom pleaded by him.

Proof of any other custom could not help him.

There is plenty of evidence to show that the Kanikkars tribe as such was not governed by any patticular custom.

The Census Report of 1931, dealing with the Kanikkars states thus :

"A man's property devolves equally on his sons and sisters' sons.

In the absence-of nephews, the sons get the whole property.

Descent is reckoned through the female line and children belong to the clan of the mother.

In Cherukara of Pathanapuram Taluk, inheritance is through the male line."

In the History of Kerala edited by Shri K. P. Padamanabha Menon, it is observed :

"In the matter of inheritance there is some difference between the Kanies who live in the interior of the hills and those living in the plains. The former follow Makkathayam, tlie sons taking the father's property, if any, and yet it is not Makkathayam pure and simple, for, the moiety of the personal property goes to the sister's son, i.e. to the nephews.

With those living in or near the

SUPREMB COURT REPORTS [1971] SUPP. s.c.R.

plains, the self-acquired property is distributed equally between the sons and nephews. If there are no sons, the nephews inberit the whole property.

The rights of the widow being considered to maintenance alone."

In Sri L. A. Krishna Iyer's book on the Travancore Tribes, dealing with Kanikkars the learned author observes :

"Property includes clothing, implement, utensils, weapons, live stocks and crops. Deceased man's property is divided half to his nephews and the other half among his sons. In the absence of a nephew, the property devolves on his sons. In the absence of sons it devolves on the niece. Jn her absence it goes to his brothers and sisters.

In no case does it go to his wife.

Even the hut goes to the nephew.

The widow with her children goes back to her brother. ln regard to the lives stock, the Kanikkars in the vicinity of Kallar, state, that pigs and goats are reared by women and they pass on to their children on their demise.

When a girl is married the property goes with her to her husband's home; the husband's share goes to the nephew."

The author also says that "Descend is reckoned in the female line.

A man's children belong to the clan of the mother".

In the Travancore State Manual published in 1940 by T. V.

Velu Pillai, dealing with Kanikkars, it is stated thus :

"The law of inheritance is not uniform.

What generally obtained is Makkathayam. In many cases what belongs to a deceased man is divided between sons and nephews equally.

Marumakkathayam is also met with.

Sometimes different clans forming the same tribe followed different systems of inheritance."

From the above it is clear that Kanikkars clan as such does not follow any particular custom.

It appears that different families follow different customs.

Some were following Marumakkathayam, some Makathayam and others a mixture of the two.

The High Court has come to fhe conclusion that the family of Kochan Kani was governed by Marumakkathayam law mainly on the basis of certain admissions said to have been made by him. These admissions may be classified under two different heads.

In some of the documents he described himself as "ananthiravan" of Mathevan-a practice followed by Marumakkatbayees.

But he did not do so invariably.

In some documents be bad described himself as the son of Malan Kani.

Therefore it is unsafe to place any reliance on those documents.

The second

set of documents relied on by the High Court are those where Kochan Kani described himself as a Marumakkathayee but there are other documents where he described himself as Makkathayeesee Exhts. D-32 and D-31.

Hence the High Court should not have placed much reliance on these alleged admissions.

It may be that Kocnan Kani's family was following a custom which is partly Marumakkathayam and partly Makkathayam.

It is not necessary for us to decide in these proceedings as to the custom followed by the family of Kochan Kani.

As seen earlier, the only question to be decided is whether Kanikkars clan was governed by Marumakkathayam law.

For the reasons mentioned above we have to hold that it is not proved that the clan in question is governed by Marumakkathayam law.

In the result Civil Appeals Nos. 924 and 925 of 1966 are allowed and the suits from which they have arisen are dismissed.

So far as Civil Appeal No. 926 of 1966 is concerned, the appellant being the son of Kochan Kani must be held to be entitled to inherit his father's property, unless it is proved that his father was governed by a custom under which the son does not inherit his property. No such proof is forthcoming.

Therefore he is entitled to have a declaration that he is the owner of the suit properties.

But the question whether the defendant therein can be evicted in view of the prevailing tenancy laws or not has not been decided by the High Court.

Hence that case is remitted to the High Court for deciding that question.

Under the circumstances of the case we direct the parties to bear their own costs in 311 the courts.

V.P.S.

KOCHAN KANI KUNJURAMAN KANI

K. S. HEGDE .WO A. N. GROVER, JJ

S. 78

S. 74

S. 78

S. 436


YUSUF & ANR.

Vs.

STATE OF BIHAR May 7, 1971

[K. S. HEGDE AND A. N. Git.OVER, JJ.)

Constitution of India, Art. 136-A.ppreciation of evidence-This Court will not re-appraise evidence except in S[Ncial circumstances-Minor embllishments and exaggeration do not drtract from value of testimony of a witness.

Nine persons includina the two appellants were tried for the murder of G as well as attemptin1 to murder P.W. 9. Four of the nine accused were acquitted by the trial court and the others were convicted under several provisions of the Indian Penal Code.

In appeal the High Court disbelieved the witnesses speaking to the attack on G and acquitted all th~ appellants before it in respect of the murder of G. It also came to the conclusion that it was not proved that there was any unlawful assembly.

Even in the matter of the attack on P.W. 9 the High Court came to the conclusion that as there was no proof of previous concert on tho part oJ the assailants no aid could be taken from s. 34.

Therefore it commuted tho conviction of appellant No. I for causing injury to P.W. 9 from one under s. 307 read with s. 34 l.P.C. to one under •. 326 I.P.C. The conviction of appellant No. 2 was converted from s. 307 I.P.C. read with s 31!' l.P.C. to one under s. 324 I.P.C. Against this decision tho present appeal was broucht by special leave. The question for consideration was whether the conviction of the appellant on the sole testimony of P.W. 9 wa~ justi tied when even the two witnesses who tried to corroborate P.W. 9 were disbelieved by the High Court.

HELD : (i) This Court ordinarily does not reappreciate tho evidence unless it is satisfied that exceptional and special circumstances exist for doing so. The Court must be satisfied that as a result of serious mis:ippreciation of the evidence by the trial court and the High Court substantial and grave injustice has been done. Even !lt the final hearing only those points can be urged which are fit to be urged at the preliminary &tage when the leave to apfl<al is asked for. [794F-H]

Hem Raj v. State of Ajmer, (1964] S.C.R. 1133, relied on.

(ii) It was fully established that P.W. 9 was injured at about t!\O time and the place mentioned in the charge.

The incident had taken place when there was still day light. The appellants were well known to the injur ed so that there could be no difficulty in identifying them. P.W. 9 was not shown to have had any motive to falsely implicate the appellants. He had mentioned the names of the appellants as the assailants at the earliest opportunity. His version was corroborated by medical evidence and was a probable one. The fact that the High Court had disbelieved the two witnesses who &ought to corroborate P.W. 9 or that there were certain minor contradictions and embellishments in his statement could not detract from the value of bis testimony. Both the trial court and the High Court had accepted his testimony. There was no reason for this Court to differ from them. The appeal must accordingly fail. [79SA-B]

YUSUP v. BIHAR (Hegde, J.) 793

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.

A 265 of 1968.

Appeal by special leave from. the judgment and order dated July 19, 1968 of the Patl)a High Court in Criminal Appeal No. 72 cf 1966.

Nur-ud-din Ahmed and B. P. Singh, for the appellants.

U. P. Singh, for the respondent.

The Judgment of the Court was delivered by

Hegde, 1.-Nine persons including the two appellants were tried for the murder of Ghulam Rasool as well as for attempting to murder P.W. 9, Mohd. Islam. Four out of those nine accused were acquitted by the trial court. The rema'ining accused were convicted under several provisions of the Indian Penal Code.

But in appeal, the High Court acquitted all the appellants before it in respect of the incident relating to the murder of Ghulam Rasool. Further it converted the conviction of appellant No. l for causing injuries to P.W. 9 from one under s. 307 read with s. 34, I.P.C. to one under s. 326, l.P.C. and for that offence sentenced him to suffer rigorous imprisonment for seven years. The conviction of appellant No. 2 Bano alias Ibrahim was converted from s. 307 l.P.C. read with 5. 34, I.P.C. to one under s. 324.

I.P.C. and for that offence he was sentenced to suffer rigorous imprisonment for three years. As against that decision this appeal has been brought by special leave.

The prosecution case in brief is that there was a Qawali competition about a month prior to the occurrence.

P.W. 4 lmteyaz was one of the competitors. In order to show that his performance was excellent accused Nizam made a show of making a present of Rs. 3 to him on that occasion. But on the very next day, he demanded back that amount.

After some persuasion Imteyaz returned Rs. 2 but he failed to return the balance of Re. I. This led to a friction between Imteyaz and his friends on one side and Nizam and his friends on the other. On December 3, 1964, some of the accused persons including the appellants started a quarrel with Imteyaz and P.W. 5 Babu Qasab in connection with the return of the aforementioned Re. I. Because of the intervention of P.W. 13; nothing serious happened on that day. Bot it is said that on the next evening at about 7 P.M. when P.W. 5. Babu Qasab and P.W. 6 Shamsuddin cal)le near the scene of occurrence, the accused persons stopped them and assaulted them. Coming to know of that incident from P.W. 1, Naso, his father Ghulam Rasool went to the scene. There he was severely attacked as a result of which he died. Thereafter P.W. 9 came Jo know that there was a marpit going on at the scene and

SUPRE.Mll COURT REPORTS

(1971) SUPP. s.c.R.

therefore he went to that place to see what the matter was. Af soon as he went there, he was attacked by Chamo (appellant No. I) with an i'nstrument like Bhalla and by Bano with a Gandasa as a result of which he sustained serious injuries. Immediately P.W. 9 was shifted to the hospital where his dying declaration was recorded on December S, 1964.

The High Court has disbelieved the witnesses speaking to the attack on Ghulam Rasool. As mentioned earlier all the accused were acquitted of the charges relating to that incident. The High Court has also come to the conclusion that it is not proved that there was any unlawful assembly.

Even in the matter of attack on P.W. 9, the High Court has come to the conclusion that as there is no proof of previous concert on the part of the assailants, no aid can be taken from s. 34, I.P.C. Consequently it convicted the assailants of P.W. 9 only for the injuries caused by them.

Both the trial court as well as the High Court have concurrently believed the testimony of P.W. 9.

His testimony is fully corroborated by the medical evidence adduced in the case.

He had sustained two serious injuries one on the stomach and the other on the shoulder blade. As a result of the stomach injury his intestines had come out. The evidence of P.W. JO, Dr. Am bika Prasad who examined P.W. 9, corroborates his testimony.

Further corroboration for the testimony of P.W. 9 is available from the dying declaration given by him in the hospital on the-

5th of December, 1964.

This Court ordinarily does not reappreciate the evidence unless it is satisfied that exceptional and special circumstances exist for doing so. The court must be satisfied that as a result of serious misappreciation of the evidence by the trial court and the High Court subtantial and grave injustice has been done. It was held by this Court in Hem Raj v. The State of Aimer (1) that unless it is shown that exceptional and special circumstances exist, that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, this Court does not exercise its over-riding powers under Art. 136(1) of the Constitution.

It is further held therein that the circumstance that the appeal has been admitted by special leave does not entitle the appellant to open out the whole case and contest all the findings of fact. and raise every point which could be raised in the High Court. Even at the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal i.S asked for.

(I) [19S4] S. C. R. 1133.

YUSUF v. BIHAll (Hegde, J.)

It is fully established that P. W. 9 was injured at about the time and the place mentioned in the charge. The incident had taken place when !here was still day light. The appellants were well known to the injured. Hence he had no difficulty in identifying them. It is not shown that P.W. 9 had any motive to falsely implicate the appellants.

He bad mentioned the names of the appellants as his assailants at the earliest possible opportunity.

The version given by him as regards the manner of attack on him is corroborated by medical . evidence. It is true that the High Court has not accepted the ev'idence of P.Ws. I and 2 who sought to corroborate the testimony of P.W. 9. That cannot throw any doubt on the testimony of P.W. 9. The probabilities of the case are in favour of tlie version given by P.W. 9.

The only thing urged against the evidence of P.W. 9 is that in his dying declaration he had said that A I had attacked him with a Bhalla, but during his evidence in court he stated that he was attacked by an instrument resembling Bhalla. Later on it was proved through him that he was attacked by the instrument Exh. 1 which is a KAFGIR. This contradiction is of very minor significance.

Another contradiction brought out at the time of his cross-examination was that during his evidence he had merely spoken to the attack on him by the appellants, but in his dying declaration in addition to saying that these appellants had attack; ed him, he had also stated that after he fell down some of the other accused had attacked him with sticks. This statement appears to be an exaggeration. But under the circumstances of the case that embellishment is not sufficient to detract from the value to be attached to his testimony. As mentioned earlier both the trial court as well as the Higli:-Q>_urt have accepted his testimony as being substantially true. We see no reason to differ from that conclusion.

In the result this appeal fai~ and the same is dismissed.

The appellants are on bail. They shall now surrender to the authorities and undergo the remaining portion of the sentence imposed on them.

795.

G. C.

Appeal dismi.ni!d.

YUSUF & ANR

STATE OF BIHAR

K. S. HEGDE

Constitution of India

Art. 136

Indian Penal Code

s. 34

s. 307

s. 34

I.P.C

s. 307

I.P.C

s 31

s. 324

I.P.C

Indian Penal Code

s. 307

s. 34

I.P.C

s. 326

s. 307

I.P.C

s. 324

I.P.C

s. 34

I.P.C

Art. 136(1)


INDRANARA YAN

11.

ROOP NARAYAN & ANR.

May 7, 1971

[K. S. HEGDE AND A. N. GROVER, JJ.)

Hindu Joint family-Member separating jrom-Prtsumptiom and proof.

Transfer of Property-Gift-Amounts deposited in fixed deposits in joint names of father and son-Property of father-If and when gift in favour of son can be inferred.

The appellant filed a suit against the first respondent for partition of their deceased father's properties. The suit was partly decreed by the High

Court in appeal. Both parties appealed to this Court. The first respondent contended inter a/ia that: (I) the appellant had separated himself from the family as far back as 1936 and therefore was not entitled to any share; and

(2) the amounts of the fixed deposits in a Bank and a Company had been gifted away to him by the father since the father, a few days before his death, instructed the Bank and the Company to transfer the fixed deposit amounts from his single name to the joint names of himself and the first respondent.

HELD: (1) The law presumes that the members of a Hindu family arc joint, a presumption which is stronger in the case of a father and his sons. and it is for the party who plead! that a member of the family ad separated himself to prove it satisfactorily. For the existence of a joint family, the family as ouch need not possess any property since iUs not property, but relationship, that knits the members of a family toielher.,

Jn the present case, the appellant, the first respondent, and their father were members of a joint family, though the family possessed no property, all the properties being the self-acquired properties of the father. There was a great deal of disagreement between the appellant and bis f'lther, the former expressing now and then that he was not, interested in his father's estate, and the latter threatening to disinherit the appellant.

But apart from such mere emotional outbursts there was no evidence at 3.ll to show that be had at any time made any unequivocal declaration that the appellant had separated himself from bis family nor had be communica~ any such intention to separate himscf either to the karta or to any of the members of the family.

[804E-G]

(2) (a) There was no evidence to show the genuineness of the letters alleged to have been written by the father requesting the Bank and the Company to transfer the deposits in his name to the joint names of him self and the first respondent

(b) But even if such letters were in fact written by the father, there was no evidence of the general intention on the part of the father to aive those amounts exclusively to the first respondent.

In fact about two months before his death the father executed a will disinheriting the appellant but revoked it very soon thereafter. Therefore a mere dit.ection to the bank to put the amounts in the joint names to himself and the

INDRANARAYAN V. llOQPNARAYAN (Hegde, J.)

first respondent given by the father when he was seriously ill might be only a prudent step for facilitating collection, and does not show an in tention to make over the amounts to the first respondent. Since the father continued to be the owner till his death and there was nothing to show that the father intended that the amounts should go to the first respondent exclusively and in pursuance of such an intention transferred the deposits io the joint names of himself and the first respondent, there was neither a gift nor an advancement. [807F.]

Guran Ditta v. Ram Datta, I.LR. 55 Cal. 944(P.C.) Pandit Shambhu Nath Shivpuri v. Pandit Pushkar Nath, L.R. 71 I.A. 197, Young Sealey,

[1949] 1 All. E.R. 92, Mrs. Avis Fitzalah Cowdrey v. Imperial Bank of India, A.I.R. 1956 Mad. 56 and Dalvi Nagarajamma v. Stale Bank of India, A.I.R. 1%2 A.P. 260, referred to.

' CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1096 and 1097 of 1969.

Appeals from the judgment and decree dated March 24, 1964 of the Madhya Pradesh High Court, Indore Bench in first appeal No. 36 of 1959.

M. V. Paranjpe, K. Rajendra Chodhary and K. R. Chau- D dhuri, for the appellant (in C. A. No. 1096 of 1969) and the respondent (in C.A. No. 1097 of 1969).

S. T. Desai', B. Datta, P. C. Bhartari and J. B. Dadachanji, for the respondents (in C.A. No. I 096 of J 969) and appellants (in C.A. No. 1097 of 1969).

The Judgment of the Court was delivered by

Hegde, J.-These appeals arise from a partition suit between two brothers. The plaintiff is the elder brother and the I st defendant is his younger brother. The second defendant is the wife of the !st defendant. The plaintiff and the I st defendant are the sons of Dr. Sudarshan Pandit, a medical practitioner who practised at Indore. Dr. Pandit had extensive practice. He died on April 6, 1949 leaving behind him extensive properties. His wife had died in 1918. Dr. Pandit had three daughters. We are not concerned with them in this case. The contest is mainly between the plaintiff and the !st defendant. There is also a dispute as regards the ownership of a deposit of Rs. 50,000 made by Dr. Pandit in the name of the second defendant.

The contention of the !st defendant was that tbe plaintiff had separated himself from the rest of the family as far back as 1936 and therefore he is not entitled to any share in the suit properties. Further he took the plea that deposits of Rs. 41.000 in the Bank of Indore and Rs. 50,000 in Binod Mills which stood in the name of Dr. Pandit till about the third week of March, 1949 hc1 been gifted to him. According to him Dr. Pandit gifted the

SUPRBMl! COURT REPORTS [1971] SUPP. s.c.R.

four deposits totalling Rs. 41,000 in the Bank of Indore on March 25, 1949 and the deposit of Rs. 50,000 in the Binod Mills on March 30, 1949. The deposit of Rs. 50,000 made by Dr. Pandit in the name of the second defendant was claimed by the second defendant as her exclusive property. She claimed that amount as a gift from her father-in-law.

The properties with which we are concerned in this suit have been held to be the self-acquired properties of Dr. Pandit. That finding was not questioned before us.

The trial court dismissed the plaintiff's suit on • the sole ground that he had separated himself from his father as far back as 1936 whereas the 1st defendant continued to be joint with his father. It held that as he was separate from his father the plaintiff had no right in the properties left behind by Dr. Pandit. In appeal the High Court substantially reversed the decree of the trial court. The High Court came to the conclusion that there was no evidence to show that the plaintiff had separated himself from the family. It also came to the conclusion that the deposits of Rs. 91,000 referred to earlier are the properties of the joint family and hence divisible.

But it upheld the claim of the I st defendant in respect of a sum of Rs. 25,000 which had been made over to him by his father on March 21, 1949. In respect of the deposit of Rs. 50,000 in the name of the second defendant, the High Court came to the conclusion that it was her exclusive property. The !st defendant has appealed against the High Court's decree to the extent it went against him and the plaintiff has appealed against the finding of the High Court that the sum of Rs. 25,000 given to the !st defendant on March 21, 1949 is his exclusive property.

He also challenged the finding of the IDgh Court that the deposit of Rs. 50,000 in the name of the second defendant is her exclusive property.

Both the appeals were brought on the strength of the certificates issued by the High Court.

Dr. Pandit originally hailed from Jaora, an Indian State.

He practised at Indore.

He had extensive practice in Central India. He lost his w'ife in 1918 leaving behind her three daughters and two sons. The eldest son, the plaintiff in this case was hardly 7 years old when his mother died and the younger son was three years' old. Dr. Pandit appears to have been extremely anxious that his eldest son should step into his shoes and should become an eminent medical practitioner. In 1927, he took the plaintiff, when he was hardly 16 years old to England and put bim to school. He gave' him liberal allowance in the Initial stages. It appeara from the record that he was sending him annually about £300.

Unfortunately the P.laintiff did not make much progress

INQRANARAYAN v. ROOP NARAYAN (Hegde, J.) 799

in his studies. Dr. Pandit was disappointed. The evidence discloses that at first he tried to induce the plaintiff to work hard.

But the plaintiff showed no progress. It is clear from the correspondence that passed between the father and the son that the father was feeling that the son was not applying himself seriously to the studies but the son was feeling that he is being goaded .to -do something for which he was not cut out. Gradually Dr. Pandit began to adopt a stiffer attitude towards the plaintiff.

He was apprehending that his dreams were not coming true, but he was not prepared to retrace his steps. Evidently he thought that what he could not achieve by persuasion, he could do by adopting a stiffer attitude. Thereafter the letters that he wrote to the plaintiff were couched in rude language. He went on calling the plain- ' tiff a waster. one lacking in efforts and in short a wholly useless character. It is clear from his letters that Dr. Pandit was under the impression that the plaintiff was lacking in efforts and he could make him to put in his best by an extra doze of rudeness.

Plaintiff's reactions to his father's biting letters was one of bitterness and hostility. He wrote to his father that he was a tyrant and that he was lacking in affection. He caJ!ed him a worshipper 'of Mammon. He attributed his failures to his father's unkind

ness.

The correspondence that passed between Dr. Pandit and the plaintiff from 1936 to 1940 make a very sad reading. There is no doubt that Dr. Pandit was an affectionate father. His one all absorbing ambition was that his son should excel him. Things did not work out in the way he wanted. But he was not the person to reconcile him to the inevitable and chalk out a new path for his son. His obsession of making his son a good medical practitioner was such that he just ignored the realities and went on driving the plaintiff to desperation. The plaintiff was an ob- stinate type. He was blind to his father's affection. He appears to have been unduly touched by his father's harsh words. Possibly because of want of parental affection in the formative period of life he was insolent, resentful and insulting. to hJs father.

He repeatedly wrote 'to his father that his fife was blasted by him.

There is no doubt that the plaintiff was a highly sensitive type.

He was no less rude than his father.

It is unnecessary to refer in detail to the various letters that passed between the father and the son which have been produced into court.

In the initial stages Dr. Pandit was sending to his son about £300 a year. Later on he cut it down to £200 a year.

Evidently Dr. Pandit thought that if the allowance of his son is cut down, he would give more attention to his studies. But that circumstance again appears to have had an adverse effect.

The plaintiff was evidently unable to make two ends meet with the allowance that he was gefting. From his letters it is. c\ear that thereafter he was more worried about his day 'to-clay living than

SUPREME COURT IlEPORT" [1971] SUPP. s.c.R.

his studies. He began to send cables after cables to his father asking for more remittances but the father continued to be strict.

Obviously Dr. Pandit was a very strong willed man. On March 6.

1936, Dr. Pandit in his letter (Ex. D-122) to the plaintiff wrote thus:

"You may return you may not return has nothing to do with me. But on your return you cannot stay so long as I Jive in our family and wish to disinherit you from all your claims in future from what little share you could have."

It is seen from that letter that the plaintiff had asked hi; father to give him at least an allowance of £4 / 6 S. a week. In 1936 Dr. Pandit made it clear to the plaintiff that he would provide him with funds only for three more years to complete his

studies and thereafter all remittances would be stopped.

The correspondence between Dr. Pandit and the plaintiff between 1936 to I 940 show that the war of words between the father and the son continued. Even after 1936 the plaintiff made little progress in his studies. In 1940 Dr. Pandit wanted the plaintiff to come back from England and for that purpose he deposited w'itb.

Thomas Cook & Co., sufficient amount for his passage home with instructions to them not to pay that amount to the plaintiff but only to provide him with the passage. The plaintiff refused to return to India. Thereafter Dr. Pandit is said to have stopped remittances to the plaintiff. But remittances to the plaintiff v•ere made by the !st defendant as well as by his sister Dr. Shanti Karnath. There is reason to believe that those remittances were made in the names of the !st defendant and Dr. Shanti Karnath by Dr. Pandit himself. Ultimately the plaintiff came back to India in 1948. At that time the !st defendant was working at Kolhapur. The plaintiff did not go to Indore where his father was living but he went to Kolhapur where his brother was stationed. Thereafter he got a job in Calcutta and. he went to Calcutta.

The plaintiff's relationship with the !st defendant and his sisters were extremely cordial as disclosed by the letters that passed between the plaintiff and the I st defendant and his Sisters.

When the plaintiff returned to India evidently Dr. Pandit was very anxious tci meet him but he was unwilling to show to his son that he was the first to yield. He wanted that the plaintiff should repent and make amends. The plaintiff was too arrogant a person to submit to his father. The first defendant, evidently at the instance of his father tried to induce the plaintiff to meet his fatb.er. He wrote to him to say that mistakes had been made by both sides and the time has come for both of them to forget the oast. But the plaintiff was not sure that his father had softened.

He wanted to be satisfied that his father had in fact repented for his folly.

When things stood thus Dr. Pandit fell ill with an

IllDllANUATAN r. 1.o<W Nillt.YAN (B11tk, J.) 101

attack of Cancer of the !llllg8. He was shifted to Bombay for A treatment in February 1949.

The 1st defendant .informed this fact to the plaintiff. The plaintiff took leave and went to Bombay and was by the side of his father till his father was in Bombay.

In the middle of March 1949, the. Doctors at Bombay advised the relations of Dr. Pandit that his end was near and it was best that they shifted him to Indore. Dr. Pandit was removed to Indore B on March 14, 1949. The plaintiff, the !st defendant and the other relations of Dr. Pandit went along with him.

The plaintiff remained in Indore till about the last week of March and then returned to Calcutta. The condition of Dr. Pandit deteriorated day by day and he passed away on the early morning of April 6, 1949.

The High Court was of the opinion that when the plaintiff was

at Indore during the illness of his father he was treated as the C paraiah of the family and it was because of that reason he did not come back to Indore after the death of his father.

At Indore Dr. Pandit remained in a Nursing Home till his death.

Before proceeding to set out what happened at Indore between the 14th of March and 6th of April, 1949, it is necessary to refer to one circumstance. On February 21, 1949, Dr. Pandit executed a Will and registered the same at Indore (Ex. P-13) under. which he bequeathed to each of his daughters Rs. 60,000 and the residue to the 1st defendant. There is evidence to show that ever since he executed the Will, Dr. Pandit was uneasy in mind and repenting. He was anxious to revoke that Will. When be was in Bombay he got a revocation deed prepared by a solicitor and executed it. He was not prepared to leave it unregistered. He insisted that it should be registered and it was registered This conduct of his shows that despite the fact that he was wholly dissatisfied with the conduct of the plaintiff, he was not prepared to cut him off. This shows the inrui~, affection of Dr. Pandit to his obstinate and wayward, son, despite his seeming hostility towards him. The 1st defendant's. explanation that the Will in question was. brought abo11t by the father-in-law of one of the widowed daughters of Dr. Pandit has .not been accepted by the High. Court nor are we convinced about It.

After Dr. Pandit was. shifted to Indore many things happened in quick succession. Everybody knew that Dr .. Pandit's end was near. His condition was deteriorating day by day. Medical evidence adduced in the case shows that there was gradual deterioration in the physical as well as in the mental condition of Dr. Pandit. R. D. Joshi <D.W. 8) owed Dr. Pandit a sum of Rs. 25,000. It is said that Dr .. Pandit wanted Joshl to return that money. On the 21st March, 1949 Joshi gave him a cheque for Rs. 25 ,000. That cheque was sent to the Bank of Indore for being cashed and credited to the account of Dr. Pandit. On the same day Dr. Pandit issued a cheque for Rs. 25,000 in favour of the

51-1 S. C. lodia/71

SUPRIME COURT REPORTS

(1971) SUPP. s.c.R.

1st defendant. On that very day the first defendant opened an account in the Ba.nk of Indore and credited the amount covered by the cheque into his account and thereafter on that day itself he issued a cheque for Rs. 15,000 to R. D. Joshi.

Dr. Pandit had four different fixed deposits covering a sum of Rs. 41,000 in the Banlc of Indore. On March 25, 1949, it is said that Dr. Pandit wrote to the Bank of Indore to transfer all those fixed deposits to the joint names of himself and the !st defendant. We were told that that direction was carried out. Dr. Pandit had a fixed deposit of Rs. 50,000 in the Binod Mills Ltd. A letter was said to have been sent to the said Mills by Dr. Pandit on March 30, 1949 requesting the Mills to transfer the fixed deposit to the joint names of Dr. Pandit and the !st defendlint.

In 1948, Nawab of Jaora gave to Dr. Pandit who was his family physician a sum of Rupees one lakh. Out of that he deposited a sum of Rs. 50,000 in the name of his daughter-in-Jaw, the second defendant and the balance of Rs. 50,000 he deposited in his own name. According to the evidence of the second defendant, she had accompanied her father-in-law to Jaora when the amount in question was received.

After the receipt of the amount her father-in-Jaw gave her Rs. 50,000 but she left that amount with him requesting him to invest the same. Accordingly Dr. Pandit deposited that sum in her name and informed her about that fact by means of a letter and sometime thereafter when he went to Kolhapur, he gave that deposit receipt to her.

After the death of Dr. Pandit, !st defendant wrote several letters to the plaintiff infomting him about the state of affairs at Indore. He wrote to him about the various details connected With tht affairs of the household but he did not inform him about the nsfer of the deposits mentioned earlier. From those letters it is clear that the !st defendant was keeping his brother informed about the family afj'airs. It appears that sometime after the death of bis father, the plaintiff came to know that the !st defendant was claiming that his father had left a Will bequeathing all his prerties to him. It is likely that this information was given to him b)\ his brother-in-law Karnath who was also station ed at Calcutta. The plaintiff was quite indifferent about the matter. At that stage his mood was such that he did not care to have even a "brass-button" from his father's estate. But yet he was curious to know whether i.11 fact his fatl:\er had left a Will.

In about the end of May 1949, the !st defendant sent a copy of the alleged Will to the plaintiff but the plaintiff was anxious to see the original Will. Evidently with the lapse of time, the plaintiff began to take more interest in his father's estate. In June 1949, the I st defendant and the second defendant went to Cal cutfll and showed to the plaintiff the Will alleged to have been

INDRANARAYAN 'v. ROOP NARAYAN (Hegde, J.)

S03

executed by Dr. Pandit. The !st defendant was insistent that the plaintiff should execute a deed of relinquishment but the plain tiff refused to walk into the trap. On April 4, 1950, the plaintiff caused a lawyer's notice to be issued to the !st defendant requiring him either to get the alleged Will of his father proba!ed or refer the matter to the arbitration of some disinterested person.

To this notice the !st defendant caused a reply to be; sent on May

JO, 1950. The material portion of that reply reads thus: ·

"My client firmly relies on the Will made by his father.

The original document has been inspected by Mr. I. N. Pandit. He has had opportunity of satisfying himself that the Will bears the signature of the late Dr. Pandit. It is attested by respectable persons who could have no motive in conspiring to benefit my client.

Under the circumstances the effort in your letter to thcow

doubt on the genuineness of the Will has no point. The late Dr. Pandit dealt with bis cash and the Bank account subsequent to the making of the Will and consistently with his intention to exclude Mr. I. N. Pandit which is writ large on the document."

It is necessary to notice that in May 1950 I.e. about a year after the death of Dr. Pandit, the stand taken by the !st defen

dant was that he was entitled to the entire estate left by Dr. Pandit because of the Will left by Dr. Pandit. In the registered reply notice, there is no reference to the separation of the plaintiff from the family ; nor is there any reference to the gifts later on put forward by the !st defendant. ,

The plaintiff filed the suit from which these appeals arise on April 12, 1951. The 1st defendant filed his written statement on September 16, 1951. In this written statement, there is no refer ence to the Will left by Dr. Pandit. The alleged Will completely disappeared from the scene. On the other iland the lst defendant took the plea that the plaintiff is not entitled to any share in the properties left by Dr. Pandit as he had separated himself from Dr. Pandit as far back as 1936. The other plea taken up by him was that by transferring the fixed deposits that were standing in Dr. Pandit's name to the joint names of Dr. Pandit and himself Dr. Pandit , made a gift of the amounts covered by those deposits 1o him and therefore he. is exclusively entitled to those amounts.

The second defendant claimed that the deposit made by her father

in-law in her name was a gift to her.· At this stage we may mention that the alleged Wm of Dr. Pandit was not produced into court. As seen earlier in his reply to the registered notice the

I st defendant had asserted that the Will had been signed by Dr. Pandit and attested by respectable witnesses. But when cros&- examined about ihat will the !st defendant first stated that it was

104 SUPABXE COUl.T 1.EPOl\111 [1971] SUPP. s.c.a.

only a draft. When pressed further he stated that it was pencil draft with numerous erasions but all the same signed by Dr. Pandit and attested by respectable witnesses. There is hardly any doubt that the story of the Will is a faked one. It was evidently a ruse to get a relinquishment deed from the plaintiff who was at one time indifferent about his share in his father's estate.

But the story of the said Will has great significance when we come to examine the defence put up by the !st defendant.

The first question that has to be decided is whether there was a separation between the plaintiff and the members of his family.

The plea taken in the written statement is a somewhat curious one. There is, no allegation that the plaintifi had sepa rated from his family. On the other hand what was pleaded is that the plaintifi had separated from his father. No members of a Hindu Jamily can separate himself from one member of the family and remain joint with. others. He is either a member of the joint family or he is not. He cannot be joint with some and separate from others. It is true that for the existence of a joint family, the family need possess no property. The chord that knits the members of the family together is not property but the relationship. There is no gainsaying the fact that Dr. Pandit and bis sons were members of a joint family though that family as such possessed :no property.

All properties possessed by Dr. Pandit were hi& self-acquired properties.

We agree with the finding of the High Court that there was no separation between the plaintiff and his family. The law presumes that the members of a Hindu family are joint. That presumption will be stronger in the case of a father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily. There is not an iota of evidence in this case to show that the plaintiff had at any time made any unequivocal declaration that he had separated himself from his family much less there is any evidence that he communicated his intention to separate himself from the family either to the karta or to any of the members of the family. There is no doubt that there was great deal of disagreement between Dr. Pandit and the plaintiff. It is also true that as far back as 1936 Dr. Pandit had threatened to dis-inhent the plaintifi but these facts by themselves do not prove the factum of separation. The fact that the plaintifi was now and then expressing that he was not interested in his father's estate do not amount to a declaration of his intention to separate from the family. The High Court rightly considered these statements 111 emotional outbursts. We have earlier seen that in the reply notice sent on behalf of the !st defendant there is , not even a whisper of the plaintiff's leP811ltiob from the family. Therefore the plea af the !st defendant that the plaintiff had separated from the family is clearly an dtet thought. It is based on no evidence. To prove

INDRANARAYAN ,, ROOPNARAUN (Hegde, J.)

that the plaintiff had separated himself from the family, reliance was placed on the testimony of Col. Madbav. His evidence is too vague and too slender to found a case of separation. All that he says in his deposition is :

"I was at Kolhapur about a month at that time. He said about the finance of his younger son's frame business. I do not know the details but I gathered that whatever he possessed he was going to make in the joint name of himself and hi younger son."

Even if we acce : the evidence of this witness as reliable, it is much too vague a d inconclusive.

Further it docs not bear on the question of separation.

Now coming td the question of gifts, it is necessary to remember the fact that in February 1949, Dr. Pandit did make a Will but within si'I' days after making that Will. he revoked the same. Dr. Pandit .r:as a highly educated man. He had the assistance of influential friends. He had even the assistance of a solicitor at Bombay. /He knew that his end was near but yet he did not choose to make a Will. These circumstances generally speaking militate against the plea of gifts put forward by the 1st defendant. Further as seen earlier 'in the registered reply notice sent on behalf of the I st defendant, there is no. reference to these gifts.

Therefore the evidence relating to those gifts will have to be examined very closely.

Let us first take up the alleged gift of Rs. 41,000. We have earlier seen that Dr. Pandit had four fixed deposits in the Bank of Indore. The first defendant's case is that on March 25, 1949, with the intention of gifting the amounts covered by those deposits, Dr. Pandit instructed the bank to transfer the deposits to their joint names thereby making it possible to realise the amounts when they become due by either of them or by the survivor. The evidence relating to the letter said to have been sent by Dr. Pandit to the bank is somewhat suspicious. Medical evidence shows that Dr. Pandit was mostly unconscious during the last days of his life. It appears that the secondaries had affected his brain.

Dr. Akbarali deposed that some days after his return from Bombay Dr. Pandit was found eating cotton-wool in the bath-room.

It may be as elicited from Dr. Akbarali that on some day he might have been conscious. Under these circumstances, we have to examine the evidence relating to transfer of deposits with great deal of caution. The evidence relating to transfer of deposits had not been examined by the trial court. The trial court dismissed the plaintiff's suit solely on the ground that he had separated ldmself from the family. After carefully examining the evidence bearing on the point, the High Court has 11ot found it possible to

c .·

SUP&BllB couar It.IiPOit.TS (1971] SUPP. s.c.a.

accept the !st defendant's case as regards the gift of Rs. 41,000.

The request by Dr. Pandit to transfer the deposits in the Bank of Indore was said to have been made on March. 25, 1949. The main witness examined to prove the letter said to have been sent by Dr. Pandit is R. D. Joshi (D.W. 8). According to him he wrote the letter in question. His version is that he had been to the Nursing Aome in which Dr. Pandit was, on March 21, 1949 in connection with the payment of the amount due from him to Dr. Pandit and it was on that occasion he under instructions from Dr. Pandit wrote out that letter and after getting it signed by him, it was delivered at the bank. According to him that letter was sent on March 21, 1949. He goes further and says that after the 21st of March, he did not go to the Nursing Home nor did be see Dr. Pandit. The original letter that was alleged to have been sent to the bank of Indore is not forthcoming. Its genuineness is sought to be proved by the testimony of R. D. Joshi, the Accountant of the bank and its Genera.I Manager. The version given by the General Manager of the bank is that after receiving summons from court, he picked out the letter and kept it in safe custody but he says that from safe custody the letter has disappeared. This is somewhat surprising. R. D. Joshi's evidence throws a great deal of doubt on the genuineness of the letter. The letter referred to by R. D. -Joshi is purported to have been sent to the bank on the 21st March. But the copy of the letter that was produced before the court bears the date 25th March. There ia no explanation for this discrepancy.

In view of the evidence of the bank officials, the High Court accepted the !st defendant's version that Dr. Pandit did send a Jetter to the bank on March 25, 1949 asking the bank to tranafer the deposits to the joint names of himself and the I st def en dant but all the same it came to the conclusion that the evidence on record is not sufficient to show that Dr. Pandit wanted to make a gift of the amount covered by those deposits to the !st defendant. We are unable to agree with the High Court that the cvi dence adduced in this case is satisfactory enough to prove that Dr.

Pandit had sent any letter to the bank on March 25, as alleged by the !st defendant.

Assuming that Dr. Pandit had sent the letter in question yet from the evidence on record, we arc unable to come to the conclusion that by doing so Dr. Pandit intended to make a gift of the amounts in question to the !st defendant. The !st defendant bas not taken a consistent stand as regards the alleged gifts. In the registered reply sent, as seen earlier, there was no reference to these gifts. In the written statemept the case taten is one of gifts but the case pleaded in court is one of advancement. The diir

tinction between gift, benami and advancement has not been clearly borne in mind by the High Court.

INDllANAllAYAN v. llOOP NARAYAN {Htfdt, J.)

The transfer with which we are concerned in th.is case cannot be gift because Dr. Pandit continued to be the owner of the amounts in question till his death. There is no presumption of advancement in this country but yet if there had been satisfactory evidence to show that the transfers in question are genuine and further that Dr. Padit intended that the amounts in question should go to the !st defendant exclusively after his death, we would have held that the advancement put forward had been satisfactorily proved and the presumption rebutted.

It was for the !st defendant to establish that there was a general intention on the part of Dr. Pandit to benefit him and in pursuance of that intention he transferred the deposits to the joint names of himself and the !st defendant. If he had proved those facts, he would have made good his plea-See Young and1 anr. v. Sealev('); Mrs. Avis Fitzolah Cowdrew v. Imperial Bank of India and anr.(') Dalvia Nagarajamma v. State Bank of India, Cuddapoh and ors. (').

In Guran Ditta and anr. v. Ram Ditta, (') the Judicial Com mittee held that the deposit made by a Hindu of his money in a bank in the joint names of himself and h.is wife, and on the terms that it is to be payable to ei'ther or the survivor, does not on hii death constitute a gift by him to his wife. There is a resulting trust in his favour in the absence of proof of a contrary intention, there being in India no presumption of an intended advancement in favour of a wife. Tlul same view was expressed by the Judicial Committee in Pandit Shambhu Nath Shivpurl v.

Pandit Pushkar Nath and ors.(')

But the difficulty in this case is firstly that there is no 11Btisfactory proof of the alleged letter sent by Dr. Pandit to the Bank of Indore. Secondly there is no evidence of the general intention on the part of Dr. Pandit to give 'those amounts exclusively to the !st defendant. In the letter said to have been sent by Dr. Pandit to the bank all that is said is that he wanted to put the amount in the joint names of himself and the !st defendant as he was seriously ill. There is nothing in that letter to show that he intended to make over that amount to the 1st defendant. As noticed earlier Dr. Pandit was in his death bed. Therefore he might have thought it prudent to transfer the deposits to the joints names of himself and th.e 1st defendant to facilitate collection. That being so we are unable to uphold the plea of the !st defendant regardfog those deposits.

(I) [1949) I, All. E. R. p. 92.

(3) A.I.R. 1962 A. P. 260.

(S) I.L.R. 71, I.A. 197.

(2) A.l.R, 1956 Mad. S6.

(4) I.L.R. SS, Cal. 944.

SUPllBME COURT JlBPOR'Ill

[1971) SUPP. S.C.R.

Now coming to the deposit in the Binod Mills Ltd., the letter said to have been sent by Dr. Pandit has been produced in this case but the contention of the plaintiff is that the letter in que>- tion must have been typed on a blank letter-head of Dr. Pandit

bearing his signature.

There is some basis for this contention.

The plaintiff has been able to produce two blank letter-heads of Dr. Pandit bearing hJc signatures. There is reason to think that Dr. Pandit was signing on blank letter-heads for one reason or the other. The signature that is found on the letter sent to Binod Mills Ltd. shows that the signatory's hand was firm and not shaky.

This letter_ is said to have been sent on 30th March 1949, hardly six days before Dr. Pandit's death. The medical evidence shows that at about that time Dr. Pandit was passing through critical days. At this juncture it is necessary to recall the fact that when Dr. Pandit sent the cheque given to him by R. D. Joshi on March 21, 1949, after endorsing the same to the bank along with r.is cheque to defendant No. I, the Manager not being sure of the genuineness of those signatures as they appeared to have been made by a shaky hand sent his assistant to the Nursing Home to find out from Dr. Pandit aa to whether those signatures were his.

Dr. Pandit's hands could not have become more firm nine days after the 21st of March. We have seen the signature on the letter said to have been sent by Dr. Pandit to the Binod Mills on the 30th of. March. It appears to have been made by a perfectly firm hand.

Further as seen from the medical evidence Dr. Pandit's mental condition was likely to have been far from satisfactory on 30th March. Dr. Akbarali deposed that he would be surprised that if someone told him that Dr. Pandit signed any paper during the week before he died. Hence we are unable to pronounce in favour of the genuineness of that letter. Even if we had come to the conclusion that the letter is genuine it affords no evidence of the fact that Dr. Pandit wanted to make over the deposit to tM

!st defendant. The letter says that the transfer to joint names is desired because of Dr. Pandit's illness. Hence the case as regards the alleged transfer of the deposit in question does not stand on a better footing than that relating to the transfer of the deposits in the bank of Indore.

Now coming to the appeal filed by the plaintiff, we shall first take up the cheque issued by Dr. Pandit to the !st defendant on March 21, 1949. There is no doubt as regards the genuineness of that cheque. There is reliable evidence to show that on that day Dr. Pandit was quite conscious. . The circumstan~ 11nder which the transfer was made clearly indicate that Dr. Pandit wanted to give that amount to the l st defendant. The High Court has come to the conclusion that it was a gift by Dr. Pandit to his son. The surrounding circumstances of the case .to which reference has been made earlier support that concluSton.

There

INDRANARAYAN •• ROOP NARi\YAN (Hegde, J.)

is nothing surprising if Dr. Pandit wanted to give a sum of Rs. 25,000 to his son who has been very helpful to him.

So far as the deposit in the name of the second defendant is concerned, the High Court's finding in our opinion is unassailable. It ia clear from the evidence that Dr. Pandit was very fond of his daughter-in-Jaw.

The evidence of the secontl defendant has been believed by the High Court. Out of the amount received from the Nawab of Jaora, Dr. Pandit deposited Rs. 50,000 in his own name and Rs. 50,000 in his daughter-in-law's name.

Thereafter he wrote to. her that he has made the deposit in question.

Subsequently he handed over the deposit receipt to his daughter-in-law.

All these circumstances show that Dr. Pandit wanted to give that money to his daughter-in-Jaw for whom he had great alfcction. The evidence of the second defendant that her father-in-law had made a present of Rs. 50,000 to her is clearly acceptable.

There was some controversy in tlJAl High Court as regards the jewels but all that the plaintiff's Counsel wanted us was to ..:orrect an erroneous statement of fact in the judgment of the High Court to the effect that the second defendant had filed a list of jewels that were given to her. Beyond that no other change in the judgment of the High Court was sought. It is admitted that the second defendant had not filed any list of the jewels given to her. Subject to this correction, the High Court's decision on this point is affirtned.

It was urged on behalf of the plaintiff that he had been kept . out of the estate of his father for over 22 years and therefore we may direct the !st defendant who is now in possession of the properties as court receiver to pay to him at least half the cash amount that was there at the time of. Dr. Pandit's death. This request appears to us to be a reasonable one. It is not necessary to determine at this stage theexact cash amount that was there at the time of the death of Dr. Pandit. Suffice it if we direct the !st defendant as receiver either to transfer the fixed deposits of the value of Rs. S0,000 or to 11 pay to the plaintiff a sum of Rs. 50,000 within a month from this date.

This sum will be adjusted at the time of the final decree.

In. the result both these appeals fail and they are dismissed ..

Under the circumstances of the case we direct the parties to bear their own costs in this Court.

-v.P.S.

Appeals dismissed.

INDRANARA YAN

ROOP NARAYAN & ANR

K. S. HEGDE

A. N. GROVER, JJ.

L.R. 71 I.A. 197