'"' r

3 19

STATE OF UTTAR PRADESH

HET RAM & ORS.

February 3, 1976

[R. S. SARKARIA AND P. N. SHINGHAL, JJ.J

Local irupection-"Anv place in which an offe11ce fa {/llcged to ha\'e been conunittcd or any other Place which it is in his opinion necessary to view for !he purpose of properly appreciating the evidence", n1eans only the renue of ofie11ce and no other p!ace..__code of Crbninal Procedure (Act 5), 1898- Section 539 B, object of.

The respondents we_re convicted by the Sessions Judge for the offence under s. 302/34, J.P.C. for committing the murder of one Rati Ram and sentenced C to rigorous imprisonment for life. They were also convicted under s. 307134 I.P.C. for causing grievous injury to Raja Ram (PW 2) with intent to commit his murder and sentenced to rigorous imprisonment for 10 years.

They were, however, given the benefit of doubt and acquitted of the murder of Nainsuk brother-in-Jaw of Rati Ram. The convictions were based on the dying declaration and the seven incise wounds on Rati Ram and 26 incised wounds on Raja Ram and also on the evidence of Raja Ram (PW 2) and Dwarika

(PW 3) who identified the respondents as the assailants.

The offence took place in the early hours of 24th December 1971 (About 330 A.J\t) and it D was the admitted case that it was a dark night.

During the pendency of the appeal by the respondents, the learned Judges of the High Court acting under s. 539B, Cr.P.C., 1, ve11t \\'ith the Government Advocate and the respondents' counsel on 11-1-1974 to a place where there \Vas no artificial light at about 7.30 p.m. for the purpose of appreciating the veracity of the evidence of Ra_ia Ram (PW 2) and Dwarika (PW 3) tendered at the trial in identifying the respondents in darkness. Finding that under the E circumstances noticed by them, it was difficult to recognise a person, the High Court disbelieved the evidence of PW2 and PW3 and acquitted the respondents.

AJJowing the appeal by special leave, and remitting the case for rehearing, the Court,

HELD : ( 1) Section 539B of the Code of Criminal Procedure, 1898, contemplates the lo:; al inspection of the topography of the place in which the offence was alleged to have been committed or its local peculiarities for the purpose F of appreciating the evidence which was already on the record.

[322FJ

(2) Jn the instant case, the procedure adopted by the Judges in visiting quite a different place, on a time unconnected with the time of the allep-Pt 1

incient, f?r the purposes of decdin.g whether the witnesses could identify the assailants 1n the darkness was quite illegal and it was not permissible for them to dispose of the case on the basis of their own findinp:s vdthout regard to the evidence \Vhich \Vas already on record. f324A-B]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No, 79 of l 975.

(Appeal by Special Leave from the Judgment and 1 5-1-1974 of the Allahabad High Court in Criminal 2545/72).

0. P. Rana, for the appellant.

Order dated Appeal No.

YogeJhwar Prasad and Miss Rani Arora, for the respondent.

A The Judgment of the Court was delivered by

SHINGHAL, J.-The Sessions Judge of Farukhabad convicted respondents Het Ram, Sobran and Ram Pal of an offence under section 302/34 l.P.C. for committing the murder of Rati Ram, and sentenced them to rigorous imprisonment for life.

He also convicted them of an offence under section 307 /34 I.P.C. for causing grievous injury to Raja Ram (P.W. 2) with intent to commit his murder, and sentenced them to rigorous imprisonment for ten years.

The respondents were given benefit of doubt in regard to the murder of one Nain Sukh, brother-in-law of Rati Ram, and were acquitted.

While no appeal was preferred against the acquittal, the accused went up in appeal to the High Coc1rt of Judicature at Allahabad, which took the view that the prosecution had failed to establish the guilt beyond reasonable doubt.

The High Court allowed the appeal by its judgment dated January 15, 1974, and set aside the conviction and the sentences of the accused.

The State of Uttar Pradesh has therefore filed the present appeal by special leave.

The controversy in this Court centres round a short point but, in order to appreciate it, it will be necessary to make a brief mention of some of the facts.

It was alleged by the prosecution that there was a dispute between Rati Ram and respondent Het Ram over a potato field.

Rati Ram initiated proceedings under section 144 Cr.P.C. and secured an order of attachment. A panchayat was held thereafter, and it decided that while the potato crop may be given to respondent Het Ram, the field may be given to Rati Ram. It was alleged that the terms of the decision of the panchayat were reduced to writing and that document was handed over to Nain Sukh, brother-in-law of Rati Ram.

It was alleged further that on December 24, 1971, Rati Ram and his son Raja Ram (P.W. 2) left for Farukhabad at about 2.45 a.m. in a bullock cart loaded with potatoes for selling them there. Rati Ram's nephew Dwarika (P.W. 3) accompanied them in another bullock cart loaded with potatoes for the same purpose.

At about 3.30 a.m. when they were travelling between Jhaua and Rampura villages, they were surrounded by respondents Het Ram, Sobran and Ram Lal who were armed with "Karalis''. It is alleged that Het Ram was also armed with a pistol, and Sobran with a lathi.

All the three respondents caused injuries to Rati Ram and Raja Ram, who raised an alarm.

Dwarika, who was trailing behind in his cart, also raised an alarm and ran towards Jhaua village, but the respondents ran away towards the west before the villagers could arrive saying they would go and kill Nain Sukh. It is said that Nain Sukh was murdered soon after while he was sleeping in Rati Ram's "cbaupal". A report of the incident was lodged at police station Shamshabad shortly afterwords. at about 9.50 a.m.

The injuries of Raia Ram and Rati Ram were examined by the Medical Officer, District Hospital. Fatehgarh, the same day.

Raja Ram had 26 incised wounds.

The iniuries of Rati Ram were also

xamined the snrne dav. Ile haO 7 inCiscd \Vounds.

His dying declaration was recorded bv the Sub-Divisio:d Maistrate on December

24. 1971. and he succumbed to his iniurics on December 30, 1971.

Nain Sukh succumbed to his injuries soon after the incident, but we A are not concerned with his case as it is not the subject matter of the appeal before us.

The High Court took note of the fact that Raja Ram (P. W. 2) and Dwarika (P. W. 3) were the two eye witnesses of the prosecution in regard to the incident relating to the injuries infiicted on Rati Ram and Raja Ram. It held that the presence of Raja Ram had been established by the injuries which were received by him, and it also reached the conclusion that Dwarika (P.W. 3) was also present at the tinie of the incident.

After recording that finding, the Judges raised the question whether those witnesses could identify the assailants in the dark night and answered it in the following manner,-

"As we were not certain whether persons could be identified in a dark night even from a short distance we went to a place where there was no artificial light on 11-1-7 4, which was the third day of dark fortnight, at about 7.30 p.m. before moonrise along with the learned Government Advocate and Sri Kundan Singh counsel for the appellants. We found that it was extremely difficult to recognise faces even of persons standing within a foot.

Although the general outline of the face was visible the features could not be seen clearly. Beyond a distance of two or three feet even the outline of the face was not clear.

It is noteworthy that according to the evidence on record the assailants did not speak at all at the time of the occurrence.

There was therefore no question of recognition by voice. We are therefore of the opinion that even Raja Ram and Rati Ram who had received injuries in the incident were not in a position to recognise the assailants clearly beyond the possibility of any mistake. According to the evidence on record, Dwarika is alleged to have recognised the assailants from a distance of about five or six paces. From that distance it was not at all nossible to do so. The result therefore is that we are not prepared to accept either the dying declaration of Rati Ram or the statements of Raia Ram and Dwarika regarding the complicity of the appeliants in the crime. The implication of the appellants on the basis of suspicion cannot be ruled out as. admittedly there was a dispute between Rati Ram and Het Ram in respect of a field which, according to the prosecution, constituted the motive for the crin1e."

The legality and the propriety of the visit of the Judges "to a: place where there was no ai; tificial light", at 7.30 p.m. on January 11, 1974 and the inferences drawn from that visit, is the only point which has been urged for our consideration, for, as has been stated in the judgment under appeal, that was the basis of the order of acquittal. While Mr. Rana has challenged that action, Mr. Yogeshwar Prasad has argued that the visit was by way of a local inspection within the meaning of section 539B of the Code of Criminal Procedure and was quite in order. It is admitted that a memorandum of the facts observed by

the Judges was not recorded, and Mr. Yogeshwar Prasad has invited our attention to several decisions of High Courts in which, it has been held that such an omission was a mere irregularity so long as it coulo be shown that it had not caused failure of justice or prejudiced the defence.

It is not in controversy before us that it is permissible for an appellate court to make a local inspection of the nature contemplated by section 539B. Sub-section (1) of that section. which bears on the controversy before us. reads as follows.-

"539B (1) Any Judge or Magistrate may at any stage of the inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offenre is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the the evidence given at such inquiry or trial. and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection."

What is therefore permissible is that a Judge may inspect any "place"

in which an offence is alleged to have been committed," or "any other place" which it is in his opinion necessary to view for the purpose of "properly appreciating the evidence" given at an inquiry, trial or other proceeding.

The Judges of the High Court did not, however, inspect any such place in which an offence was alleged to have been committed and, as is obvious, it cannot be said that they inspected any other place which could be said to be necessary to view for the purpose of properly appreciating the evidence in the case.

The learned Judges in fact did not go to visit any particular "place" as such, for they went to a place "at a short distance" where there was no artificial light merely for the purpose of ascertaining whether "persons could be identified in a dark night even from a short distance." Theirs was therefore not a local inspection within the meaning of section 539B Cr. P. C., for what that section contemplates is the local inspection of the topography of the place in which the offence was alleged to have been committed or its local peculiarities for the purpose of properly appreciating the evidence which was already on the record.

It will be recalled that the incident in this case was alleged to have taken place at about 3.30 a.m. on December 24, 1971. The Judges however chose to go and visit a place unconnected with the incident on January 11, 1974, at about. 7.30 p.m. for the purpose of ascertaining whether persons could be identified at that hour from a short distance. They thus chose the time and the place of their visit according to their whim and fancy, quite unconnected with the time and place of the incident.

Mr. Y ogeshwar Prasad has not been able to refer us to any provision of law under which such a course could be said to be permissible.

It will be recalled that the Judges did not record a memorandum of any relevant fact observed by them at the time of their inspection.

But even if it is assumed, for the sake of argument, that the omission did not prejudice any one and was a mere irregularity, the fact remains that, as we shall show presently, they did not

correlate the result of their inspection to the evidence on record and there is justification for the argument of Mr. Rana that the local ins .. pection cannot be said to have been undertaken for the purpose of properly appreciating the evidence on record.

We have extracted that portion of the impugned judgment of the High Court which bears on the controversy before us.

There is nothing in the judgment to show the na•ure of tlie p'o:e which "'as

selected by the Judges for their visit on January 11, 1974 at about

7.30 p.m. It is thus not known whether it was an open place, or it was some such place as the one where the alleged incident took place.

The time of the visit had also nothillg to do with the alleged incident.

It has been stated by the Judges that they found that it was "extremely difficult to recognise faces even of persons standing within a foot," but they have not stated whether it was impossible to recognise the faces of even those persons who were relations and were well known to the witnesses over a long period of time.

The statement of Raja Ram (P.W. 2) in the trial court was read out to us.

He has stated that the accused gave the beating while clinging to the victims at close quarters.

There is however nothing in the judgment of the High Court to show whether the darkness found by the Judges was so intense that even those clinging to the victims could not be identified by them in the darkness which the Judges found at the time of their inspection.

The statement that it was extremely difficult to recognise faces of persons standing within a foot, was thus quite immaterial because the evidence to the present case was not that the accused were standing at that distance but that they were clinging to the victims.

It has further been stated in the impugned judgment that "although the general outline of the face was visible the features could not be seen clearly". It has not however been stated whether the features of well familiar faces could also not be recognised. The same criticism applies to the observation that beyond a distance of two or three feet, even the outline of the face was not clear. It would thus appear that it is not possible to contend that the local insoection on which considerable reliance was placed by the learned judges was undertaken for the purpose of "properly appreciating the evidence"

on the record. If we may say so. the inspection was not utilised for any such purpose.

It had the effect of substituting the personal observations of the Judges for the evidence on the record.

It is a matter of regret rhat these views should have formed the basis for rejecting the prosecution evidence altogether.

It has to be remembered that Raia Ram (PW. 2) received as many as 26 incised wounds. some of which were on the front part of his body.

He has stated at the trial that the accused were clinging to him so that. according to him, he was facing them at very close quarters, Rati Ram received 7 injuries including those on the chest.

He also thus had the opportunity of identifying them at very close quarters.

The statement of Raja Ram and the dying declaration of Rati Ram should therefore have been examined by the High Court, as the Court of first appeal. on their merits and not on the fanciful ground that the Judges who went for local inspection found, on their own examination, that it was extremely difficult to recognise the faces of the assailants.

For the reasons mentioned above, we have no doubt that the procedure adopted by the Judges in visiting quite a different place, on a date and time unconnected with the time of the alleged incident, for the purpose of deciding whether the witnesses could identify the assailants in the darkness, was quite illegal and it was not permissible for them to dispose of the case on the basis of their own findings without regard to the evidence which was already on the record.

We are therefore constrained to set aside the impugned judgment dated January 15, 197 4 and to direct that the High Court shall rehear the appeal according to the Jaw and dispose of it within a period of three weeks.

The record of the case may be sent to the High Court by a special messenger to avoid any delay in transit.

S.R.

Case remanded.

19

STATE OF UTTAR PRADESH

HET RAM & ORS

February 3, 1976

R. S. SARKARIA

Section 539

s. 302

Rati Ram

s. 307134

I.P.C

Raja Ram

Nainsuk

Raja Ram

Dwarika

s. 539B

Cr.P.C

Ra_ia Ram

Section 539B

Code of Criminal Procedure, 1898

P. Rana

YogeJhwar Prasad

Rani Arora

SHINGHAL

Sessions Judge of Farukhabad

Het Ram

Sobran

Ram Pal

section 302

section 307

I.P.C

Nain Sukh

High Coc1rt of Judicature at Allahabad

January 15, 1974

State of Uttar Pradesh

Het Ram

Rati Ram

section 144

Cr.P.C

December 24, 1971

Farukhabad

Jhaua

Rampura

Sobran

Ram Lal

Het Ram

Jhaua village

Shamshabad

Raia Ram

District Hospital. Fatehgarh

December

24. 1971

December 30, 1971

11-1-7 4

Kundan Singh

Dwarika

January 11, 1974

Rana

Yogeshwar Prasad

section 539B

Code of Criminal Procedure

section 539B

section 539B

Y ogeshwar Prasad

Raia Ram

January 15, 197


. "

CHOGMAL BHANDARI & OTHERS

DEPUTY COMMERCIAL TAX OFFICER II DIVISION

KURNOOL

February 4, 1976

[R. S. SARKARIA AND MURTAZA FAZAL ALI, JJ.J

Andhra Pradesh General Sales Tax Act-Sec. 17(1)-Whether sales tax -t!ues of u 0calor can be recorered fro111 tr11stees-h1dia11 Trusts A>'t. 1882-

Sec. 4-Unlawful Trust-Transfer of Property Act-Sec. 53-Transfer wit/1 intent to defeat or delay creditors-Liability to pay tax-Whether depends on assess111ent and quantification-Whether authorities 111uler Sales Tax Act can decide .con1plicated questions of title.

Kollayya and Narasimaiah carried on business in partnership. The firm incurred huge losses and was dissolved in 1963. Kollayya's son Bala and Bala's son B.V.S. Rao carried on joint Hindu Family business.

B.V.S. Rao applied, being a minor, through his father Bala, for registration \Vhich Vias granted by the Sales Tax Authorities. Thereaftei, Sales Tax Authorities continued to make assessment in the name of B.V.S. Rao from the year 1966 to the year 1969.

Although B.V, S. Rao informed the Sales Tax Department that the business \Vas in fact carried on by the Joint Hindu family yet no assessment was made in the name of Joint Hindu family until 1971. Although B.V.S. Rao informed the Sales Tax Department that his business had come to an end and that the business was carried on by his grand-father Kollayya, yet the Sales Tax Depart- 1nent neither cancelled the registration of B.V.S. Rao nor issued fresh notice to Kollayya.

In September, 1968, Kollayya and Narasimiah the partners of the dissolved firm executed a registered deed of Trust by which certain properties were vested in the Trustees for the purpose of paying off the creditors mentioned in the Trust Deed who had obtained decrees ngainst the settlors.

In the year 1971 assessments were made against the Joint Hindu Family and penalties \Vere also imposed for not paying the sales tax.

All the assessments prior to the year 1971, \1.lere made in the name of B.V.S. Rao.

Since the Sales Tax Authoritie<; coukl not recover the monies from the assesees they issued notices under

s, 17 ( 1) of the Andhra Pradesh General Sales Tax Act to the appellants who were the trustees of the said trust on the ground that the trust \Vas void and fraudulent.

. A wit petition. fild by the appelants in the High Court for quashing ihe F sard notices was dtsmissed by the High Court on the ground that the deed of trust \vas fraudulent and had been executed to defeat the sales tax dues.

On an appeal by special leave it v.ns contended by the appellants :

( 1) Th~ moment the trust deed was executed by Kollayya and Narasa~

m::nah the title to those properties vested in the trustees and thus it \Vas beyond the reach of the Sales Tax Department,

(2) When the impugned notice \Vas issued in 1970 tax had not been G quantified since the assessments were made subsecluently.

Jt \Vas contended by the respondents that :

( 1) K<:illayy'.1 must b~ deemed to have knowledge as the Karta of the

Joint Hindu Family that he had inurred sales tax liability.

(2) Under s. 17(1) of the Act, the Sales Tax Authorities could realise the sales tax dues even from the trustees and the execution of the trust deed would not stand in the way of the recoveries.

(3) Thed truth ishhi~ by s. 53 of the Tn1nsfer of Property ACt. being ma e \Vtt t e intent to defeat or delay the creditors.

( 4)

The liability of the appellants arose as early as in 1966-67 and the trust deed came into existence in September, 1968.

Kollayya and trustees, therefore, could not be unaware of the tax liability.

The creation of the trust subsequently was, therefore, a device to evade the payment of arrears of sales tax.

Allowing the appeal by special leave, HELD : ( 1) The Sales Tax Department as also the High Court have held in a very summary fashion that the trust deed was void and fraudulent without cl?nsidering the real point of law which arose on the admitted facts.

[329 A]

(2) The mon1ent the trust deed was executed the trustees acquired an independent title under the Trust. The trust deed clearly mentioned the names of the creditors to whom the money was to be paid.

Under the trust, the settlors did not reserve any advantage or benefit for themselves.

There is no material to show that the decrees obtained by the creditors were collusive and the trust deed was executed before the assessment orders against the Joint Family were made and. therefore. there \Vas no real debt due from the settlors when the trust was -executed. [329A-D]

(3) The present trust cannot be said to be unlawful within the meaning of s, 4 of the Indian Trust Act, 1882. since the trust is neither forbidden by law nor does it defeat any legal provision nor can it be said to be fraudulent

ex facie.

[330D-E] Whether the trust deed has been executed with the intent to defeat or delay the creditors v.:ithin the meaning of s. 53 ( 1) of the 1ransfer of Property Act depends on the intention of the settlors depending mainly on the facts and circumstances of the case.

The mere preference of one creditor to another by itself does not lead to the irresistible inference that the intention was to defeat the other creditors.

[331CE] Musahar Sahu and another v. Hakim Lal and another L.R. 43 I.A. 104: ftfa Pwa May and another v. S. R. M. M.A. Chettiar Firn1, AIR 1929 P.C. 279, 281 and San1patrai Chhogalalji and others v. Ji'.'. S. Patel, Sales Tax Officer, and others_. 17 S.T.C. 29, 34, approved.

(4) Once the trust is held to be valid the department cannot proceed against the trustees under s. 17 ( 1). The section does not empower the Sales Tax Department to follow the money in; the hands of a bonafide transferee from the assessee even before the dues are accrued.

The Sales Tax Authorities under s. 17 can only detennine the jurisdictional facts and cannot proceed beyond

that.~ The (IUthorities cnnnot be a judge in its own cause and determine or decide complicated questions of title. f333C-E] Katikara Chinta111ani Dor(I & Ors. v. Guntreddi Annan1anaidu & Ors. [1974]t_

2. S. C. R. 655, followed.

T n the present case the Sales Tax Authorities cannot be allowed to hold that the deed of trust executed by the settlors w3s hit by s. 53 of the Transfer Of

Property Act. Even if a transfer is made with intent to defeat or delay the creditors it is not void but only voidable under s. 53. ]f the transfer is voidable the Sales Tax Authorities cannot ignore or disregard it but have to get it set aside

through a properly instituted suit after impleading necessary parties and praying for the desired relief. f333F-G] Chutterput SinRh & Ors. v. Maharaj Bahadoor and others, L.R. 32 I.A. t and Zafrul Hasan and others v. FaridUd-Din and others, A.LR. 1946 P.C. 177. approved.

(5) So long as the tax had not been ass'essed and, quantified it could not be said that any specific debt due to the Revenue from the assessee had come into existence-.

The question of such a non-existent debt, being a first charg:! on the property at the date of the execution of the Trust Deed did not arise.

[334E-F] CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1148 of 1975.

Appeal by special leave from the judgment and order dated the 2-12-1974 of the Andhra Pradesh High Court in writ petition No. • 2250 of 1973.

..,,-

M. C. Bhandare and Miss A. Subhashini for the appellant.

P. Ram Reddy and P. P. Rao for the respondent.

The Judgment of the Court was delivered by

F AZAL Au, J .-This is an appea1 by special leave against the Judgment of the Andhra Pradesh High Court dated December 2, 197 4 and arises under the following circumstances.

ltikala Kollayya and his brother-in-law Kovvuru Narasimhaiah constituted partnership firm dealing in foodgrains.

The firm carried on the business in the name and slyle of "Kovvuru Narasimhaiah and Ktikala Kollayya".

The firm, however, stood dissolved in 1963.

The firm appears to have been in serious financial difficulties and incurred debts to the tune of about Rs. 70,000/-. The creditors filed an insolvency petition but the petition was ultimately dismissed because it was held that the firm had no means to discharge the debts.

Subsequently the business was started in-tlie name of B. V. S. Rao son of Bala Scshaiah.

After the death of ltikala Kollayya his son Bala Scshaiah and his son B. V. S. Rao carried on joint Hindu family business.

In fact B. V. S. Rao applied on May 8, 1966 for a certificate of registration to the Sales Tax Department of the State and was given the same.

B. V. S. Rao who was a minor had applied for the certificate through his guardian Bala Seshaiah.

Thereafter the Sales Tax Department continued to make assessments in the name of B. V. S.

Rao.

Thus for the years 1966-67, 1967-68 and 1968-69 the provisional assessments were made in the name of B. V. S. Rao the minor.

It is not disputed that during all these years the business was run in the name of B. V. S. Rao the minor grandson of Kollayya.

There are also materials on the record to show that B. V. S. Rao had informed the Sales Tax Department that the business was in fact carried on by the Joint Hindu family and yet no asscsrnent was made in the nan1e of the Joint Hindu family until 1971. It is true that the High Court has held that B. V. S. Rao was merely a benamidar for Kollayya who was the real proprietor of the firm and therefore the real dealer would be Kollayya and not B. V. S. Rao. The High Court also relied on the circumstance that Kollayya did not appear before the Sales Tax Department in obedience to the notices issued to him and therefore the High Court thought it was too late in the day for Kollayya to contend that he was not a dealer within the meaning of the Andhra Pradesh General Sales Tax Act.

Mr. Ram Reddy learned counsel for the respondent did not support this part of the reasoning of the High Court because the Sales Tax Department having itself issued the certificate of registration to B. V. S. Rad and having recognised him as a dealer could not make a somersault and start assessing tax in the name of Kollayya who was not at all a registered dealer. Furthermore, it would appear that B. V. S. Rao had himself informed the Sales. Tax Department that his business had come to an end and that the busmess was carried on by his grandfather and yet the Sales Tax Department did not choose to cancel the registration of B. V. S. Rao or to issue fresh notice to Kollayya.

In these circumstances the ball was in the court of the Sales Tax Department which appears to have taken delayed actlon in the matter for assessing Kol\ayya as the manager of the

joint Hindu family for the first time in 1971. Mr. Ram Reddy confined his arguments only to the question that in view of the circumstances of the .case Kollayya must be_ deemed to have knowledge as the karta of the. JO!Ilt Hindu family that he had earned sales-tax .liability and from this alone an inference was sought to be raised that the trust was a fraudulent _transaction.

Weare, however, unable to press this mference too far m view of the reasons which we shall give hereafter.

lt appears that on May 26, 1969 B. V. S. Rao informed the Salcs- Tax Department that he had stopped the business with effect from August 1, 1968 and despite this fact the Sales Tax Department went on making assessment orders in the name of B. V. S. Rao. Further on January 17, 1968 the Deputy Commercial Tax Officer while making the assessment order had stated that the business was being carried on as joint family business by Bala Seshaiah the father of B. V. S. Rao. It appears that on September 16, 1968 Itika]a Kollayya and Kovvuru N arasimhaiah, i.e. the partners of the dissolved firm, executed a registered deed of trust by which the properties mentioned in Schedule 'B' were vested in the trustees for the purpose of paying off the creditors who were named in Schedule 'A' of the trust deed.

Thirteen persons were named in Schedule 'A'. According to the assessees the creditors mentioned in Schedule 'A' had obtained decrees against the settlors and it was for the purpose of discharging the previous debts of those creditors that the trust was executed. Subsequently it appears that the assessments were made against the joint Hindu family on January 18, 19 and 24, 1971 aud penalties were also imposed on the assessees for not 'paying the sales tax.

The sales tax authorities, therefore, made the assessment in the name of the joint Hindu family for the first time on January 18, 1971 and prior to that the assessments were made in the name of the minor B. V. S. Rao. The Sales Tax Department having found that the assessees had constituted a trust in respect of the properties and as the amounts could not be realised from the assessees notices were issued on the petitioners who were the trustees for payment of the amounts due under the various assessments made by the Sales Tax--Department on the joint Hindu family.

The Sales Tax Depaitinent was of the view that the deed of trust dated September 16, 1968 was void and fraudulent and was brought about to defeat the debts of the Sales Tax Department in the shape of the assessments made against the joint Hindu family whose business was carried on by its karta Bala Seshaiah.

Demand notices under s. 17(1) of the Andhra Pradesh General Sales Tax Act were served on the petitioners who filed a writ petition before the A1dhca Pradesh High Court for quashing the notices, on the basis of which the amounts were sought to be recovered.

The High Court held that the deed of trust was fraudulent and had been executed to defeat the Sales Tax Department of its dues and the petitioners were, therefore, trustees of an invalid trust and being in possession of the properties held the same on behalf of the debtor assessees who were liable to pay, the amounts.

On this finding the writ petition was dismissed. by t\)_e High Court. The petitioners moved the High Court f?r granmg ceJc tificate of fitness for leave to appeal to this Court which having bcl(n

refused they obtained special foave from this Court and hence this A appeal.

lt is. true that the Sales Tax Department as also the High Court have held in a very summary fashion that the trust deed was void and fraudulent and, therefore, it could be ignored by the Sales Tax Department.

Normally this should have been a finding of fact which could have. settled the. matter beyond any controversy. But on a perusal of B the facts and circumstances of the case we find that the real point of law which arose on the admitted facts does not appear to have been considered either by the sales tax authorities or even by the High Court.

Merely because the joint Hindu family had earned liability to pay sales-tax it had been inferred by the High Court as also by the sales tax authorities that the registered deed of trust executed on September 16, 1968, about three years before the actual assessments C were made in the name of the joint Hindu family was a colourable transaction.

Learned counsel for the appellants Mr. M. C. Bhandare submitted that the petitioners were merely trustees who were to discharge the debts of the creditors tnentioned in Sch. 'A'. The moment the trust deed was executed by Kollayya and Narasimhaiah the title to those properties vested in the trustees and thus put beyond the reach of the Sales Tax Department. It cannot be said in the circumstances D that the trustees were holding the properties either on account of or on behalf of the joint Hindu family, because they had acquired an independent title under the trust.

In our opinion, the contention put forward by the learned counsel for the appellants is sound and must prevail. The learned counsel appearing for the respondent, however, submitted that the mere fact that the inembers of the joint Hindu family were aware that they had incurred the sales tax liability because E they were dealers in foodgrains and had conducted a number of sales was sufficient to show that the trust deed was fraudulent and unlawful.

It was also submitted that under s. 17 ( 1) of the Andhra Pradesh General Sales Tax Act, the _sales tax authorities could realise the sales tax dues even from the trustees and the execution of the trust deed would not stand in the way of the recoveries sought to be made against ~~m.

We would first consider the question as to the nature of the trust deed executed by the settlors. It is not disputed that the trust deed was

a reoistered instrument and came into existence three years before the actu; l assessments were made in favour of the joint Hindu family.

Furthermore it is clearly stipulated in the trust deed that the object of the trust was to discharge the. debts of the previous creditors of the G settlors who had obtained decrees from the Courts.

The names of those creditors are mentioned in Schedule 'A' and there is no material before us to show that the creditors mentioned in Schedule 'A' are fictitious persons. It is true that in the copy of the trust deed printed in the paper book the names of the creditors are not mentioned but from the certified copv of the original trust deed it appears that the names are there which. constitute of the following persons : H

1. Narendrakumar Manoharlal & Co.

2. Devraj Dbanumal.

3. Dhupaji Phoolchand.

4. Bhubutmal Chandumal.

5. Bhubutmal Bhoormal.

6. Kesarmal Mancharlal.

7. Tarachand Santilal.

8. Manrupji Nathumall.

9. Pokhraj Kantilal.

JO. Pratapchand Kundanmal.

I I. Ambapuram Bachu Pedda Subbiah & Sons.

12. Meda Krishnayya.

13. T. Nagalakshmidevamma Minor by guardian husband T.

Sanjeeva Rao. •

It is well settled that it is open to the settlors to create a trust for dis- --<f charging the debts of their creditors.

Such an object cannot be said to be unlawful.

Section 4 of the Indian Trusts Act, 1882, runs thus :

"4. A trust may be created for any lawful purpose. The purpose of a trust is lawful qnless it is (a) forbidden by law, or (b) is of such a nature that, if permitted, it would defeat the provisions of any law, or (c) is fraudulent, or {d) involves or implies injury to the person or property of another, or ( e) the Court regards it as immoral or opposed to public policy. • • • ...

The object of the trust is neither forbidden by law, nor does it defeat any legal provision, nor it can be said to be fraudulent ex facie.

In these circumstances the view taken by the High Court or the Sales Tax authorities that the trust executed in favour of the petitioners was fraudulent or unlawful cannot be accepted.

The other question raised by Mr. Ram Reddy learned counsel for the respondent was that the trust is hit by s. 53 of the Transfer of

Property Act, 1882, the relevant portion of which runs thus :

"53 (I) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or

delayed."

Before analysing the ingredients of the section mentioned above, it may be necessary to state the admitted facts :

(I) that at the time when the trust was executed no assessment order against the joillt Hindu family which was managed by one of the executants of the l!ust had been passed.

Thus there was no real debt due from one of the executants of the trust at the time when the l!uSt was executed;

(2) that the trust did not have for its object any unlawful A purpose; ( 3) that the names of the creditors were clearly mentioned in Schedule 'A' of the trust as also the properties some of which had already been sold to liquidate debts of the settlors;

( 4) that under the trust the executants did not reserve B any advantage or benefit for tliemselves; and

(5) there is no material in th~ present case to show that the creditors mentioned in SChednle 'A' had obtained collusive decrees oitliat they were aware of the debts owed by one of the executants to the Sales Tax Department before the execution of the trust deed. c

ln the facts and circumstances of t11is appeal therefore it cannot be said that the trust deed was executed to defraud the creditors namely the Sales Tax Department. Under s. 53 of t11e Transfer of Property Act a person who challenges the vallditfof the transaction must prove two facts-(!) that a document was executed by the settlor; and (2) that the said document was executed with clear intention to defraud or delay the creditors. How the intention is proved would be a matter which would largely depend on the facts and circumstances of each case.

It is well settled that the mere fact that a debtor chooses to prefer one creditor to the other, either because of the priority of the debt or otherwise, by itself cannot lead to the irresistible inference that the intention was to defeat the other creditors. In Musahar Sahu and another v. Hakim Lal and Anr.( 1) where the Privy Council observed as follows :

"The transfer which defellts or delays creditors is not an instrument which prefers one creditor fo another,· but an instrument which removes property from the creditors to the benefit of the debtor.

The debtor must not retain a benefit for himself.

He may pay one creditor and leave another unpaid: Middleton v. Pollock-(1876)2 Ch.D. 104, 108.

F So soon as it is found that the transfer here impeached was made for adequate consideration in satisfaction of genuine debts. and without reservation of any benefit to the debtor, it follows that no ground for impeaching it lies in the fact that the plaintiff who also was a creditor was a lose~ by payment being made to this preferred creditor-there being in the case no question of bankruptcy." G This decision was endorsed by the Privy Council in Ma Pwa May and another v. S. R. M. M. A. Chettiar Firm(') where the Judicial Committee observed as follows :

"A debtor is entitled to prefer a creditor, unless the transaction can be challenged in bankruptcy, and such a preference cannot in itself impeached as failing within s. 53." H

(!) L.R. 43 I.A. !04.

(2) A.LR. 1929 P.C. 279, 28!.

The learned counsel for the appellants relied on a decision 'of the Gujarat High Court in Sampatraj Chhogalalji and others v. V. S. Patel, Sales Tax Officer, and others,(') where a Division Bench of the High Court observed as follows :

'The effect of the assignment is to create a valid title in the trustees and a valid and enforceable trust for the benefit of the creditors as soon as the deed has been executed and the creditors have assented to it.

It is thus clear under the said deed of arrangement, the petitioners as trustees became the legal owners of the properties assigned to them, holding the trust premises upon trust to collect them in the first instance and after selling them to distribute the sale proce.eds thereof rateably amongst the various creditors, a list o[ whom was annexed to Schedule II to the deed of arrangement. It follows, therefore, that the trustees were not holding the sale proceeds which they deposited with the said bank in a separate account in their names as agents of the said firms or any one of them, nor were they the transferees of or successors to those businesses. * * * *

* It is also not possible to say that the bank was a person from whom any amount of money was due to any one of the aforesaid firms who were the dealers in respect of the arrears of tax.

That being the position, the very first condition necessary for the application of section 39 is totally wanting in this case."

The facts of the present case appear to be on all fours with the facts in the Gujarat case cited above. The High Court clearly held that the fact of the assignment was to create a valid title in the trustees and once the title passed to the trustees on the registration of the trust deed, the trustees could not be said to hold the properties which vested in them either on behalf or on account of the settlors.

Mr. Ram Reddy relied on s. 17(1) of the Andhra Pradesh General Sales Tax Act which runs thus :

"17. (1) The assessing authority, may at any time or from time to time. by notice in writing (a copy of which shall be forwarded to the dealer at his last address known to the assessing authority) require any person from whom money is due or may become due to the dealer, or any person who holds or may subsequently hold money for, or on account of the dealer, to pay to the assessing authority either forthwith if the money has become due or is so held within the time specified in the notice (but not before the money becomes due or is held) so much of the money as is sufficient to pay the amount due by the dealer in respect of arrears of tax, penalty or fee or the whole of the money when it is equal to or less than that amount."

H Particutar reliance was placed cin the words underlined in the section ; in order to contend that even if the trust was a valid document the

(!) 17 S.T.C. 29, 34.

trustees would be deemed by virtue of s. 1 7 to hold the money for or on account of the dealer. This contention is clearly negatived by the decisiun oi the Gujarat High Court in Sampall'ai Chhoga.aiji's case

(supra) which we have cited above and which, in our opinion, lays down the correct law on the subject. It is obvious that the object of s. 17 of the Andhra Pradesh General Sales Tax Act is to follow up the money due to the Sales Tax Department in the hands of either the assessee or any person who may be holding the money on behalf of the assessee.

The section, however, does not empower the Sales Tax Department to follow the money in the hands of a bona (uie transferee from the assessee even before the dues have accrued. There can be no doubt that the Sales Tax Authorities had the power to determine in a summary fashion as to whether or not the petitioners were holding the monies on behalf of the assessee, but the enquiry would be limited to this question only and cannot be projected further.

Where a transfer is made by the assessee after the assessment order has been passed against him in favour of persons who are either relatives or friends of the assessee and the said transfer prima facie appears to be colourable or fraudulent, it is open to the Sales Tax Dspartment to ignore such a transaction and proceed against the transferee on the basis that the transaction is a sham one and no title has in fact passed under the transfer.

But this is quite different from proceeding against a transferee who has acquired an independent title under the transfer even before the assessment is made against the transferor. The Sales Tax Authorities under s. 17 of the Andhra Pradesh General Sales Tax Act can only determine the jurisdictional facts and cannot proceed beyond that.

In Katikara Chintamani Dora & Os. v. Guntreddi Annamnaitlu & Ors(') it was ruled by this Court !that a Tribunal possesses the power to determine a jurisdictional fact which gives the jurisdiction or empowers the Tribunal to try a certain issue.

This, however, does not empower the Tribunal to be a judge in its own cause and determine or decide complicated questions of 'title.

In the special and peculiar facts of the present case which have been catalogued above, in our opinion, this is not a fit case m which F the sales tax authorities can be allowed to hold that the deed of trust executed by the settlors was hit by s. 53 of the Transfer of Property Act.

It may be noted that under s. 53 of the Transfer of Property Act if a transfer is made with intent to defeat or delay the creditors it is not void but only voidable. If the transfer is voidable, then the sales tax authorities cannot ignore or disregard it but have to get it set aside through a properly constituted suit after impleading necessary G parties and praying for the desired relief.

In Chutterput Singh & Ors.

v. Maharaj Bahadoor and ot!iers,( 2) the Privy Council observed as follows :

"No issue was stated in this suit whether the transfers were or were not liable to be set aside at the instance of Dhunput under s. 53 of the Transfer for Property Act, and H no decree has been made for setting them aside. Such an

(I) [!974] 2 S.C.R. 655.

(2) L.R. 321.A. !.

7-L522SC1/76

issue could be raised and such a decree could be made only in a suit properly constituted either as to parties or otherwise." To the same effect is the later decision of the Privy Council in Zafrul Hasan and others v. FariJ-Ud-Din and others,(') where Lord Thankerton made the following observations :

"Further, under s. 53 the wakfnama would only be voidable at the option of the "person so defrauded or delayed" ....... Until so voided the deed remains valid." Lastly it was contended by counsel for the respondent that the liability of the appellant arose as early as 1966-67 and the Trust Deed came into existence on September 16, 1968. This being the case, it was stressed that Itikala Kollayya and the trustees could not be un- \!ware of the tax liability or the amount due at that time when the trust deed was executed.

This tax liability was the first charge on the property and its sale proceeds.

Therefore, the creation of the deed and subsequent sale of the property on January 10, 1971, for liquidation of the supposed debts of the trustees and other creditors was merely a device to evade the payment of arrears of sales-tax due to the Government.

Our attention has been invited in this connectfon to the order dated November 13, I 972, of the Deputy Commercial Tax Officer. The contention is devoid of force.

As rightly pointed out by Mr. Bhandare, ; when the impugned notice dated July 20, 1970,

was issued to M/s. Uma Traders with copy to Itikala Kollayya Setty by the respondent, the tax had not been quantified; the assessments were made subsequently.

So long as the tax had not been assessed and qualified, it could not be said that any specific debt due to the Revenue from the assessee had come into existence. The question of such a non-existent debt, being a first charge on the property at the date of the execution of the trnst deed, did not arise. The contention of the respondent on this score is, therefore, overruled.

In this view of the matter, we feel that it cannot be said in the present case that the trnst deed executed by the settlors is prima facie 'fraudulent or a colourable transaction.

It will, however, be open to the Sales Tax Authorities to avoid the document by bringing a properly constituted suit, if so advised. We could also like to make it clear that any observation regarding the validity of the document that has been made in this case by us will be confined only to the materials that have been placed before us and will not prejudice the merits of either party in a suitable action which may be brought.

For these reasons the appeal is allowed, the judgment of the High Court is set aside and the notices issued by the respondent against the appellants are hereby quashed.

We would, however, direct that the sum of Rs. 31,100/- which has been deposited hy the appellants in Union Bank. Kurnool, under the directions of this Court, would not be refunded to the appellants before the expiry of three months from to-day's date.

In the circumstances of this case, we make no order as to costs in this Court.

P.H.P.

Appeal allowed. -----

(!) A.LR. 1946 P.C. 177.

CHOGMAL BHANDARI & OTHERS

DEPUTY COMMERCIAL TAX OFFICER II DIVISION, KURNOOL

February 4, 1976

R. S. SARKARIA

MURTAZA FAZAL ALI, JJ

Andhra Pradesh General Sales Tax Act

Sec. 17(1)

Sec. 4

Unlawful Trust-Transfer of Property Act

Sec. 53

Sales Tax Act

Kollayya

Narasimaiah

Bala

B.V.S. Rao

B.V, S. Rao

Narasimiah

Narasa~

s. 17(1)

s. 53

Kollayya

Indian Trust Act, 1882

s. 53

L.R. 43 I.A. 104

s. 17

s. 17

s. 53

s. 53

M. C. Bhandare

A. Subhashini

P. Ram Reddy

P. P. Rao

F AZAL Au

December 2, 197

ltikala Kollayya

Kovvuru Narasimhaiah

Ktikala Kollayya

B. V. S. Rao

Bala Scshaiah

ltikala Kollayya

May 8, 1966

Bala Seshaiah

B. V. S.

Rao

Ram Reddy

B. V. S. Rad

Kol\ayya

May 26, 1969

January 17, 1968

September 16, 1968

Itika]a Kollayya

Kovvuru N arasimhaiah

January 18, 19 and 24, 1971

January 18, 1971

Sales Tax Depaitinent

s. 17(1)

A1dhca Pradesh High Court

M. C. Bhandare

Narasimhaiah

s. 17

Narendrakumar Manoharlal & Co.

Devraj Dbanumal

Dhupaji Phoolchand

Bhubutmal Chandumal

Bhubutmal Bhoormal

Kesarmal Mancharlal

Tarachand Santilal

Manrupji Nathumall

Pokhraj Kantilal

Pratapchand Kundanmal

Meda Krishnayya

T. Nagalakshmidevamma Minor

T.

Sanjeeva Rao

Section 4

Indian Trusts Act, 1882

s. 53

Property Act, 1882

s. 53

Transfer of Property Act

s. 53

Gujarat High Court

Schedule II

section 39

Gujarat

s. 17(1)

s. 1

Sampall'ai Chhoga.aiji's

s. 17

s. 17

s. 53

Transfer of Property Act

s. 53

Transfer of Property Act

Dhunput

s. 53

Thankerton

s. 53

Itikala Kollayya

January 10, 1971

November 13, I 972

Bhandare

July 20, 1970

Uma Traders

Itikala Kollayya Setty