SHAIK ABDUL AZEEZ

STATE OF KARNATAKA

March 28, 1977

[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAL, JJ.]

Pencd Code (Act 45 of 1860), 1860, section 303-Death Sentence for murder by life convici-Whether a person sent, enced to imprisonment for life and later released by the Government by remission of sentence uls. 401 of the Cr. P.C., .1898 (1973 Code, s. 432) continues to "being under sentence of ifnprisonnient jor life" for the purpose of s. 303 I. P. C.-Cri1ninal Procedure Code, 1898, sec. 401 (1973 Code, section 432)-Scope of.

Section 303 I.P.C. lays down that "whoever being under sentence of im- , prisonment for life commits murder shall be punislied with death". The C appellant, for the offence of murder committed on December 3, 1959, had been convicted on July 26, 1961, by the High Court of Mysore under s. 302 I.P.C. and sentenced to imprisonment for life in appeal by the State against his acquittal . . The State Government, in exercise of its power under s. 402 Cr. P. C. condi- .tionally remitted his sentence on February 8, 1972 and he was, therefore, con- .ditionally released from jail on February 8, 1972. The two conditions of the .remission were that during the unexpired period of his sentence conditionally .remitted (i) he will not commit any offence punishable by any law in Mysore D .and (ii) he will not in any way associate with persons known to be of bad .character or_ lead a dissolute or immoral life. Even before the expiry of the .first year of his release, the appellant got himself involved on January 27, 1973~ .in another murder charge. He was convicted under s. 302 read with s. 303 .I P. C. by the Sessions Judge, Kolar on November 7, 1974 and sentenced t<> .death under s. 303 I. P. c. On an appeal to the High Court which was heard along with the reference for confirmation, the sentence of death under s. 302

J. P. C. was confirmed on November 19, 1975.

It held that s. 303 I. P. C. .was applicable as this was,'a case of conditional remission under s. 401 Cr P. c..

E .and the second murder was committed during the unexpired portion of the sentence of imprisonment for life. This Court while granting the ;:; pecial leave- Jimited it to the question of applicability of s. 303 I. P. C. and the sentence.

Aliowing the appeal parly and modifying the sentence of death to that of .life imprisonment. the Court,

, HELD : (1) An accused cannot be urider a sentence of imprisonment for life at the time of commission of the second murder unlesshe is actually under- F .going such a sentence or there is legally extant judicially a final sentence which he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under s. 401 Cr. P.C. [398 H, 399-AJ

(2) The earlier sentence of imprisonment for life became final and inexorable so far as the judicial process was concerned. It is only when such a sentence is "operative and executable" that s. 303 I.P.C. a attracted. [395-C]

Di/ip Kumar Sharma & Ors. State of Madhya Prades_h [1976] (2) SCR 289, referred to.

(3 ection 303 J.P.C. is applicable only to an accused who on the date of .comm1ss1on of the second offence of murder had earlier committed a murder

.or. hich his conviction and sentence of imprisonment for life were beyond 1ud1c1al controversy and operative.

[399-A]

(4) Unlike in the. case of s. 75. I.P.~., s. 303 I.P.C. does not ccnternplate a mere onhanced pumshment for a convict with a past criminal history for the same offenc~ Section 303 I.P.C. creates a most aggregated form of offence whe:n commttted~ by a person undet sentence of in1prisonment for life to be punished only with death, the maximum penalty under the law.

The tn1e effec~

SUPREME COURT REPORTS .

[1977] 3 S.C.R.

. of s. 303, I.P.C. is that if the accused was continuing to be under the sentence of imprisonment for life on the day of the second murder the court cannot come to his rescue by exercising discretionary clemency in favour of the alternative , sentence. The only sentence the court has power and is obliged to impose and no other is the senence of death.

[399 B~C]

(5) A person must be actually and irrevocably the lifer beyond the pale of , judicial controversy at the. time of commission of the second offence of murder .to be vitiated with a penalty of death under s. 303 J.P.C.

If the sentence of a convict had already been remitted at the time of commission of the second murder, he would cease to be an actual lifer to come within the lethal clamp of s. 303 I.P.C. [399-C]

(6) For the purpose of s. 303 l.P.C. there can be no warrant for introducjng a legal fiction of being deemed to be under a sentence of imprisonment for .life.

In the instant case the appellant is not liable for conviction under s. 303

I.P.C. [399-D]

Sohan Singh v. State [1965] (1) !LR 181 Punjab 201, over-ruled.

(7) Section 401 (3) makes it clear that for the purpose of s. 303 J.P.C., it does not make any difference whether the remission under s. 401 Cr. P.C. is witp_ or \Yithout conditions. [396-F]

Po Kun v. King AIR 1939 Rangoon 124; Sagan Singh v. State [196.l] !LR 181 Punjab 201; Gulam Mohan1mad Wali Mohamn1ad v. E1nperor AIR 1943 Sind 114 and Sarai Chandra Rabha & Ors. v. Kagendranath & Ors. [1961](2) SCR 133, referred to.

(8) Section 401(3) leaves it to the option of the Government to take the penal action and there is no automatic return of the prisoner tu the jail on breach of any condition of the remission. It will certainly be open to the Government in a particular case to cancel the remission but it may not.

The Government is not under a legal obligation to cancel the remission. It is only when the Government chooses to pass an order o.f cancellation of the remission bf sentence that the convict is arrested and is required to serve the unexpired portion of the sentence. During the interval the: accused who is released cannot be said to be under a sentence of imprisonment for life while he is in enjoyment of the freedom on account of remission. That period is not even reckoned under s. 401 Cr. P.C. for the purpose of calculation of the sentence to be served in the eventuality. [397 B-C, E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No 592/ 1976.

(Appeal by S.Eecial Leave from the Judgment and Order dated 19.11.1975 of the Karnataka High Court in Cr!. A. No. 551 of 1974 and Reference Case No. 56/74) R. B. Datar, for the appellant Narayan Nettar and R. C. Kaushik, for the respondent.

The Judgement of the Court was delivered by

GOSWAMI, J. The short question in this appeal by special leave is whether a person sentenced to imprisonment for life and later released 4 by the Government by remission o~ the sentence under section 401, Criminal Procedure Code, 1898, continues to "being under sentence of imprisonment for life" for the purpose of section 303, Indian Penal Code.

The appellant had earlier been .convicted on July 26, 1961, by .the High Court of Mysore under sechon 302 IPC and sentenced to imprisonment for life in an appeal by the State against his acquittal.

, The earliermurder was on December 3, 1959. The State Govern- A ment in exercise of its power nnder section 401 Cr. P.C. condition- ; ally remitted his sentence on Feburary 8, 1972. Thns he was cond1Uonally released from jail on Feburary 8, 1972.

Tragically enough, on January 27, 1973, the appellant got himself involved in the present murder charge even before the expiry of the first Year of his release.

He was convicted nnder section 302 and section 303 . IPC by the Sessions Judge, Kolar, on November 7, 1974 and sentenced to death B under section 303 IPC.

On an appeal to the High Court by ths appellant which was heard along with the reference for confirmation, the sentence of death under section 303 IPC was confirmed on November 19, 1976.

Hence this appeal by special leave limited to the question of applicability of section 303 IPC and the sentence.

The earlier sentence of imprisonment for life became final and C inexorable so far as the judicial process was concerned. It is only when such a sentence is "operative and executable" that section 303 IPC is attracted. (See Dilip Kumar Sharma & Ors. v. State of Madhya Pradesh (1) .

The remission of the sentence in this case is by the State of Karnataka in exercise of its statutory power under section 401 Cr. P.C.

The power has been exercised, in the instant case, laying down certain conditions which the convict had accepted.

The two conditions were

hat, during the unexpired period of his sentence conditionally remitted,

(1) he will not commit any offence punishable by any law in Mysore and (2) he will not in any way associate with persons known to be of bad character or lead a dissolute or evil life.

The portion of the remitted sentence, in this case, was a period of four years and four months after the appellant had nndergone over 15t years' oi his sentence including a little over five years' remission earned by him in jail. In the normal course, in absence of the order of remission, the appellant would have been released from jail on June

19, 1976.

F Shortly stated, was the appellant under sentence of imprisonment for life on the date of occurrence of the second murder on January 27, 1973? If he was continuing to be under the sentence of imprisonment for life on that day the court cannot come to his rescue by exer- .!Cising discretionary clemency in favour of the alternative sentence.

IThen the only sentence the court has power and is obliged to impose, land no other, is the sentence of death.

That is the true effect of sec- G It.ion 303 IPC.

The fact that the accused is of the age of 73 years ,'will be of no consequence once he is found guilty under section 303

ffPC.

The court will be helpless in snch an event.

The Sessions Judge as well as the High Conrt held that section 303 IPC was applicable as this was a case of conditional remission nnder section 401 Cr. P.C. and the second murder was committed n during the unexpired portion of the sentence of imprisonment for life.

396 SUPREME couu REPORTS

It is the correctness of the above view of the law that falls for !consideration before us.

That view receives support from the followring decisions cited at the bar.

The first decision is from the Rangoon High Court in Po Kun v .. The King(1). It was held in that case that-

"if the sentence of transportation for life passed on a person is conditionally remitted by the Government under s. 403? Criminal P.C., and the person is released, such person must still be deemed to be undet sentence of transportation for life in spite of the fact that he is not actually under sentence or in a penal settlement".

The next decision is from the Punjab High Court in Sohan Singh

v. The State(2 ). It was held in that case that-

"it is not essential for the application of the section (303 IPC) that a person should be ctnally undergoing the sentence of imprisonment for life when he commits murder".

x x x x

" ...... the effect of a conditional order of remission is not to altogether wipe ont or efface the remitted portion of the sentence, but to keep it in abeyance. As soon as there . is breach of the conditions of the remission, the remission can be cancelled and the prisoner committed to custody to undergo the unexpired portion of the sentence.

In the circumstances the accused should be deemed to be under sentence of imprisonment for life when the present occurrence took place".

Our attention was drawn to a decision of the Sind Court in Ghulam Muhammad Wali Muhammad v. Emperor(') which was a case of ."unconditional remission of the sentence under section 401 Cr. P.C. !It was held in that decision that since the Provincial Government had Temitted the sentence without condition under section 401 Cr. P.C. 'the accused committing the second murder after the remission would 1110 longer be said to be "under a sentence of transportation for life, 'that sentence having in effect been served".

We are, however, clearly of opinion that fov the purpose of section 303 IPC it does not make any difference whether the remission under section 401 Cr. P:C. with or without conditions. This is clear from 'a perusal of sub-section (3) of section 401 Cr. P.C. which reads as follows :-

401 (3) "If any condition on which a sentence has been suspended or remitted, is in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission and thereupon the person

(!)A.LR. 1939 Rangoon 124.

(2) [1965] I.L.R. 18 (!) Punjab 201.

(3) A.I.R. 1943 Sind 114.

In whose favour the sentence has been suspended or remit- A ted, may, if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence".

It is manifest from the above provision that on breach of any condition of the remission there is not an automatic revival of the senltem; e. It will certainly be open to the, Government in a, particular B .case to cancel the remission but it may not.

The Government is not , under a legal obligation to cancel the remission. It is only when the Government chooses to pass an order of cancellation of .the remission , of sentence that the convict is arrested and is required to serve the !unexpired portion of the sentence. During the interregnum the accusled who is rele;.ised cannot be said to be under a sentence of imprisonment for life.

While he is in enjoyment of the freedom on account c .of remission, that period is not even reckoned under section 401 Cr.

IP.C. for the purpose of calculation of the sentence to be served in the !eventuality.

Take the present case.

Supp.ose dnring the unexpired period of fuis sentence, which would had normally ended on January 9, 1976, lthe accused made breach of the fust condition of the remission giving D a slap to a person an offence punishable under section 358 IPC. !Clearly there is a breach of one of the conditions laid down, namely, tihat "he will not commit any offence punishable by any law in Mysore".

Can it be conceived that in such a case the Government will immediately cancel the remission and remand him to serve the remaining period of his sentence of imprisonment for life ? That is why section

401 (3) Cr. P.C. advisedly leaves it to the option of the Government E to take the• penal action and there is no antomatia return of the prisoner to the jail.

Counsel for the State of Karnataka relies upon the above decisions and also upon the decision of this Court in Sarat Chandra Rabha and

Others v.

Khagendranath Nath and Others(!). In Sarai Chandra Rabha case (supra) the question of remission under section 401 Cr.

F P.C. came up for consideration in the context of a disqualification clause under section 7 (b) of the Representation of the People Act,

1951. In that case the appellant's nomination paper was rejected by the Returning Officer for incurring disqualification under section 7 (b) of the Representation of the People Act. According to section 7 (b) of the Act, a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly G or Legislative Council of a State if he is convicted by a court in India of any offence and sentenced to imprisonment for not less than two years, unless a period of five years, or such less period as the Election Commission may allow in any particular case, has elapsed since his release.

It was admitted in that case that the appellant was convicted under section 4(b) of the Explosive Snbstaiices Act, (VI of 1908) and sentenced fo three years' rigorous imprison- H ment on July 10, 1953 and the nomination paper was filed

SUPREME COUTS REPORTS

in January 1957 and the election was held in Feburary 1957 Thus the period of five years had not elapsed since his release by the State under section 401 Cr. P.C. on November 14, 1954.

This Court held in that case that section 401 Cr. P.C., unlike the grant of a free tpardon, cannot wipe out eithe_r the conviction or the sentence and affirmed the order of rejection of the nomination paper on the ground of disqualification incurred under section 7(b) of the Representation of the People Act.

Mr. Nettar for the State emphasises upon the observation of this Court in Sarat Chandra Rabha case (supra) that there is no wiping icmt of the conviction and sentence under section 401 Cr. P.C. in the 'Present case and, therefore, the present appellant's conviction and rsentence subsisted on the date of the second murder.

In Sarat Chandra Rabha case (supra), this Court had to consider the effect of remission vis-a-vis a disqualification clause under an Act !which even provides for removal of disqualification by the Electiqn

Commission and which was not actually done.

There is a complete !purging process provided in the Representation of the People Act itself by an efflux of a period of five years from release on expiry of !the sentence.

Conviction and sentence recorded by a judicial court cannot be wiped , out by executive remission under section 401 Cr. P.C. in order to set at naught the penitentiary period provided for in the Act, in absence of removal of the disqualification by the Election Commission under the Act.

Those were the considerations which weighed with this, Court when it refused to do away with the effect of the judicial conviction and sentence merely on the basis of executive remission.

Even if the sentence were run through without remission, the five yearn' period had to elapse for commencement of new electoral 1ifo.

Thll factum of conviction and the sentence is sufficient and it 'does not matter whether it has been served out wholly or a portion of

t has been remitted.

The person remains convicted and sentenced for :the purpose of the Representation of the People Act notwithstanding the remission.

The decision in Sarai Chandra Rabha case (supra)

loes not at all support the submission that even after remission of the 'sentence the convict therein was under a sentence of imprisonment.

No such corollary follows from the above decision of this Court.

The observations of this Court in Sarat Chandra Rabha case (supra)

ith regard to wiping out of conviction and sentence cannot be press- '!'d too far in a criminal trial where the provisions of the penal section ':have to be very strictly construed and in case of ambiguity or passii!ity of two views the benefit of construction must be in favour of '.the accused.

To revert, at the end, to the only question with which we started. <was the appellant under sentence Of imprisonment for life during the 1mexpired period of his imprisonment conditionally remitted under isection 401 Cr. P.C.?

We are clearly of opinion that an accused cannot be under a sentence of imprisonment for life at the time of commiSsion of the second murder unless he is actually undergoing such a sentence or there is legally extant a judicially final sentence

. I

which he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under section 401 Cr.P.C. Section 303 IPC is applicable only to an accused who, on the date of commission of the second offence of murder, had earlier committed a

urder for which his conviction and sentence of imprisonment for life 'were beyond judicial controversy and were operative.

Unlike in the case of section 75, Indian Penal Code, section 303 IPC does not contemplate a mere enhanced punishment for a convict with a past criminal history for the same offence.

Section 303 IPC creates a most aggravated form of offence when committed by a person under sentence of imprisonment for life to be punished only with death, the maximum penalty under the law.

A person must be actually and irrevocably a lifer beyond the pale of judicial controversy at the time of commission of the second offence of murder to be visited with the penalty of death under section 303 IPC. If the sentence of a convict had already been remitted at the time of commission of the second murder he wo11Jd cease to be an actual lifer to come within the lethal clamp of section 303 IPC.

For the purpose of section 303 IPC there can be no warrant for introducing a legal fiction of being deemed to be under a sentence of imprisonment for life.

The decision of the Punjab High Court in Sohan Singh case (supra); with respect, is not correct. We are also, with respect, unable to agree. with the view of the Rangoon High Court in Po Kun case (supra).

We find from the judgement of the trial court as well as that of the High Court that if the appellant were not convicted under section 303 IPC, a sentence of death would not have been imposed on him. For the reasons set out earlier we are clearly of opinion that the appellant is not liable for conviction under section 303 IPC and his sentence of death is, therefore, set aside.

The judgment and order of the High Court are set aside to that extent.

The appellant, however, stands convicted under section 302 IPC and is sentenced to imprisonment for life. The appeal is partly allowed with the above modification of the sentence.

S.R.

Appeal allowed in part.

11-436SCI/77

SHAIK ABDUL AZEEZ

STATE OF KARNATAKA

March 28, 1977

Y. V. CHANDRACHUD

P. K. GOSWAMI

section 303

s. 432

s. 303

Procedure Code, 1898

sec. 401

section 432

Section 303

I.P.C

July 26, 1961

High Court of Mysore

s. 302

I.P.C

s. 402

February 8, 1972

January 27, 1973~

s. 302

s. 303

November 7, 1974

s. 303

s. 302

November 19, 1975

s. 303

s. 401

s. 303

s. 401

s. 303

I.P.C

ip Kumar Sharma

s. 75

s. 303

I.P.C

Section 303

I.P.C

s. 303

I.P.C

s. 303

s. 303

I.P.C

s. 303

s. 303

I.P.C

Section 401

s. 303

s. 401

Section 401(3)

s. 401

R. B. Datar

Narayan Nettar

R. C. Kaushik

GOSWAMI

section 401

Criminal Procedure Code, 1898

section 303

Indian Penal Code

IPC

section 401

section 302

section 303

IPC

section 303

IPC

section 303

IPC

November 19, 1976

section 303

IPC

section 303

IPC

State of Karnataka

section 401

Mysore

June

19, 1976

January 27, 1973

IPC

section 303

section 303

IPC

section 401

Rangoon High Court

s. 403

Punjab High Court

IPC

section 401

section 401

section 303

IPC

section 401

section 401

section 401

IP.C

section 358

IPC

section

401

Sarat Chandra Rabha

Khagendranath Nath

Sarai Chandra Rabha

section 401

section 7

Representation of the People Act

section 7

Representation of the People Act

section 7

Parliament

India

Election Commission

section 4(b)

SUPREME COUTS REPORTS

section 401

November 14, 1954

section 401

section 7(b)

Representation of the People Act

Nettar

section 401

Representation of the People Act

section 401

Representation of the People Act

section 401

section 401

Cr.P.C

Section 303

IPC

section 75

Indian Penal Code

section 303

IPC

Section 303

IPC

section 303

IPC

section 303

IPC

section 303

IPC

Sohan Singh

Po Kun

section 303

IPC

section 303

IPC

section 302

IPC


LAKSHMI CHAND KHAJURIA & ORS.

SMT. ISHROO DEVI

March 31, 1977

[A. C. GUPTA AND P. S. KAILASAM, JJ.]

Te1tan1e1!tary Will disposing of the ancestral property to a far relation, whether valid under s. 27 of the J'!mmu & Kashmir Hindu Succe.rsion Act, 19~6-Scope o~ s. 27 and explanation thereto-Whether income of a hereditary priest, !'l hereditary prperty-Mitakshara law as applicable to Jammu & Ka.shm1r-Though a wife cannot demand a partition she is entitled to receive a share equal to that of a son and to hold and en; oy that share .separately even from her husband.

On the. strenh of a Will dated 25th May 1959, executed in her favour by one Purohxt Mani Ram, the respondent Smt. Ishroo Devi filed a suit for recovery of the schedule property in the plaint. It was alleged in the plaint that the appellants (A-1, son; A-2, Wife; and A-3, grand-daughter of Purohit Mani Ram) after the death of Purohit Mani Ram wrongfully dispossed her after getting the name of appellant No. 1 mutated in the records and that the three items of the schedule property were the separate properties of the testator and that he was entitled to dispose them under the Will.

The appellants averred in their written statement that the properties belonged to the joint family of which the first appellant and his father Purohit Mani Ram were men1bers and as the properties were joint family properties, they cannot be disposed of by Will. It was further aUeged that the Will was a forged one and is fictitious.

The trial court, accepting the evidence of PWl, an advocate, who advised in the preparation of the Will and also an attesting witness, PW2 the scribe and PW3 who deposed the fact that the properties were self-acquired ones of late Purohit Mani Ram. decreed the suit as regards item No. 1 (a) of the plaint schedule but dismissed the claim as regards items 1 (b) and 2 holding that they were ancestral ones.

On appeal, the High Court accepted the findings of the trial court and confirmed the decree as regards item 1 (a) of the property but modified the order as regards item 1 (b) and 2 by allowing the claim of the respondent to the extent of t share since under s. 27 of the Jammu & Kashmir Hindu Succession Act 1'1ani Ram was entitled to dispose of his interest in the joint family property by Will.

Jn appeal by certificate to this Court, the appellant contended : (i) The Will was not a valid one for the reasons, namely, (a) it was ante dated in order to escape the prohibition against alienation introduced by Ordinance \Vhich caII)e

into force in July 1959; (b) the signature on the Will was forged; (c) the Will is a most unnatural one as it had not provided for the son or the wife or any near relative but has provided to a distant relative and (d) in a suit for partition filed by the son against Mani Ram, the latter gave an undertaking in the court not to alienate his properties which would improbalise the execution of

th~ Will.

(ii) The hereditary profession of Mani Ram being that of a priest whatever he earned while practising that profession and all his acquisitions should be held to be joint family property.

(iii) In view of the Mitakshara law apnlicable to the estate when partition of the joint family property takes place during the father's life time at the instance of the son, the mother also has a share equal to him.

The Court confirmed the decree in respect of item 1 (a) of the property in favour of the respondent, modified the decretal order of the High Court in re.spec! of items l(b) and 2 of the schedule property as I/3rd. in favour of appellant No. 1, 1/3rd in favour of appellant No. 2 and 1/3rd 1n favour of respondent as entitled by the Will.

The Court,

HELD: (!) The plea that the Will was executed after July 1959 when there was a prohibition against the alienation and that it was pre-dated and not executed

L. c. KHAJURIA v. ISHROO DEVI (Kaifasam, J.)

40 I

on the day on which it purports to be is without any 15ubstance and against the A evidence on record. [403 H, 404 A]

(2) The contention that the Will is an unnatural one is also without substance. The non-disclosure of the execution of the Will is understandable because Mani Ram did not want anyone, particularly his son, to know about rus iispossessing of the property by Will. [404 B, DJ

(3) The findings of the two lower courts that the Will is a genuine one and was executed by Mani Ram by his own free will cannot be assailed. In fact, B there was no challenge to the gist of the Will noted by PW2, the scribe, in one of his tegularly kept record; there was no denial by the first appellant, the son of Mani Ram that the signature found in the Will was not that of his father and there is no reason why the cogent evidence of PW 1, a respectable advocate who spoke of bis advising in the preparation of the Will having seen the execu tant sign the Will in his presence be not accepted. [405 A-Cl

( 4) The income from the practice of a hereditary profession will not be a joint family property. Item I (a) of the Property is the self-acquisition of Mani C Ram and the decree of the appe1late court so far as item No. 1 (a) is concerned must be confirmed.

[406 A, DJ

Hanso Pathak v. Harmandil Pathak and Anr., AIR 1934 Allahabad 851, approved.

Chalab!iai Gaurishankat v. Hargowan Rantji & Ors. I.L.R. 36 Born. 94, over ruled.

(5) Under the Mitaksbara Jaw excepting Madras, in the other states referred to in the decisions cited when there is a partition between the son and his father the mother is entitled to a share equal to that of the son. In the iru; tant case the case of the first appellant was that the joint family consisted of himself and his father alone, though in the earlier partition suit filed by him be claimed 1 /3rd share conceding that his father and mother are entitled to the other 2/jrd share.

As no decision in respect of the interest of the male Hindu in Jammn

& Kashmir was cited the question is remitted to the High Court for decision as E to what is the extent of the interest as regards items 1 (b) & 2 of the plaint Schedule properties. [406 E-F, 407 B-E]

Dular Koeri v. Dwarkanatl1 Misser ILR 32 Cal. 234; Sumrun Thakoor v.

Chunder Mun Misser & Ors., ILR 8 Cal. 17; Hosbanna Devanna Naik v.

Devanna Sannappa Naik and Ors. JLR 48 Born. 468 and Pratap Singh v. Dalip Singh ILR 52 All. 596, approved.

(6) In view of s. 27 of the Jammu & Kashmir Hindu Succession Act, 1956 which provides that any Hindu male may dispose of by Will any property which F is capable of being disposed of by him in law and also explanation to that sec tion which makes it clear that the interest of a male Hindu in a Mitakshara coparcenary property be deemed to be property capable of being di5posed of l:>y him within the meaning of the sub-section, in the instant case Mani Ram can dispose of his share µoder a Will. Admittedly the respondent, will be entitled to 1 /3rd share in respect of item 1 (b) and 2 of the plaint schedule in addition to the decree in her favour in respect of item 1 (a)~ [406 D-E, 407 E-F]

[The Court remitted the case back for the determination of the interest which G Mani Ram had in the joint family property at the time of his death which he could dispose of by his 'Will and grant a decree accordingly.]

CIVIL APPELLATE JURISDICTION : C.A. No. 2330 of 1968.

(From the Judgment and Order dated the 12th March, 1968 of the Jammu & Kashmir High Court in Civil First Appeal No. 9 of H 1966.)

G. B. Pai, S. K. Bagga and Mrs. S. Bagga, for the appellants.

0. P. Malhotra, K. J. John and Shri Narain for the respondent.

The Judgment of the Court was delivered by

KAILASAM, J .-This appeal is preferred by the defendant in the suit on a certificate of fitness granted by the High Conrt of Jammu & Kashmir under Article 133 of the Constitution.

The respondent, Ishroo Devi, filed a suit for a decree for possession of all the three items of property mentioned in the plaint and for future mesne profits.

It was alleged that the three items of property mentioned in the plaint. were the self-acquired properties of one Purohit Mani Ram.

He executed a will on 25th May, 1959, out of his own free will in favour of the respondent.

The original will was attached to the plaint.

Purohit Mani Ram died on 24th March, 1960, at Jammu and the resoondent claimed to be the sole owner of the properties. -

The first appellant is the son, the second appellant is the wife and the third appellant is the grand-daughter of Purohit Mani Ram.

In the plaint it is alleged tjmt the first appellant after the death of Purohit Mani Ram got rent deed executed in his favour and also recorded mutations in his name and dispossessed the respondent.

The respondent also claimed that the three items of property were the separate properties of Purohit Mani Ram and that he was entitled to dispose of them under a will.

In the written statement the appellants averred that the properties belonged to the joint family of which the first appellant and his father, Purohit Mani Ram, were members and as the properties were joint family properties, they cannot be disposed of by will.

It was further alleged that the will was a forged one and is fictitions.

The respondent examined Janak Lal Sehgal, an advocate of the Supreme Court, and the scribe of the will one Bodh Raj.

P.W. 1, the advocate, stated that Mani Ram executed the will on 25th May, 1959, in favour of the respondent.

He saw Mani Ram affix his sig- F nature on the will the words (in vernacular) under which Janak Lal had signed as witness, were under the words (in vernacular) where Purohit Mani Ram had signed.

Janak Lal had given the date with his own hand where he had signed as witness. The witness also testified that the mental condition of Purohit Mani Ram was good and he executed the will of his own free will and no pressure or fraud was played on him.

P.W. 2 Bodh Raj, is the scribe of the will. He G stated that he wrote the will at the instance of Mani Ram and after reading the will and explaining it to the testator, the testator affixed his signature and admitted it to be correct.

According to the witness the will was executed on 25th May, 1959, and on the same date the signature of the testator and those of the witnesses were affixed. At the time of the examination the witness stated that the physical and the mental condition of the testator was good and he read out the H will at the house of Janak Lal Sehgal and obtained the signatures of Mani Ram and that of P.W. 1, the advocate.

P.W. 3, Lodra Mani, stated that Mani Ram was the A.D.C. of Maharaja Pratap Singh and was in service for Maharaja's Puja, and that the Maharaja was giving

L. c. KHAJURIA v. ISHROO DEVI (Kailasam, J.) 403

lot of money to Purohit Mani Ram as present.

The witness also A stated that item 1 of the properties was constructed by Mani Ram with his own income.

On behalf of the appellants a handwriting expert, Philip Hardless, and three witnesses were examined in addition to the first appellant.

The trial court accepted the evidence of P. W. 1, the advocate, and P.\V. 2, the scribe and held that the will was proved.

Holding that items 1 (b) and 2 of the plaint schedule properties were ancestral properties found that Mani Ram had no authority to dispose of these two items of properties by will.

Therefore while decreeing the suit as regards item No. (1) (a) of the plaint schedule properties dismissed the claim as regards items 1 (b) and 2.

On appeal by the appellants a Bench of the Jammu & Kashmir High Court agreeing with the finding of the trial court and accepting the testimony of P. W. 1, the advocate, and P.W. 2, the scribe of the will, found it to be genuine and executed by Mani Ram.

The appellate court also confirmed the finding of the trial court that the item 1 (a) of the property is self-acquired property of Mani Ram while items 1 (b) and 2 are the ancestral properties.

While confirming the decree of the trial court as regards item 1 (a) it allowed the respondent's claim regarding items 1 (b) and 2 to the extent of one.- half share holding that under section 27 of the Jammu & Kashmir Hindu Succession Act, Mani Ram was entitled to dispose of his interest in the joint family property by will.

Aggrieved by the decision of the Bench of the Jammu & Kashmir High Court the appellants have preferred this appeal.

Though the concurrent finding of both the courts below is that the will was a valid one and was executed by Mani Ram of his own free will and when possessed of aU his faculties Mr. Pai, the counsel for the appellants, strenously contended that the finding should not be accepted.

He submitted that a look at the signature of Mani Ram in the will and his signatures in admitted documents would prove that the signature in the will is not that of Mani Ram.

He next contended that the will was antedated in order to escape the prohibition against alienation introduced by an Ordinance which came into force in July, 1959, Thirdly, he submitted that the will is a most unnatural one as it had not provided for the son, or the wife or near relatives but had given the entire property to a distant relation.

Fourthly, he submitted that in a suit which was filed by the son for partition against Mani Ram, the latter gave an undertaking not to alienate his properties and taking into account the proceedings it is most unlikely that he would have executed the will at time which it purports to be as he wonld have mentioned about his execution of the will in the proceedings.

We have examined all these points very carefully and we find that there is no substance in any one of them.

The plea that the will was executed after July, 1959, when there was a prohibition against the alienation and it was pre-dated is without any substance.

The will is dated 25th May, 1959, and a contemporaneous record of the substance of the will is made by P.W. 2

A in one of his regularly keet books.

We see no need for predating of the will and the basis of the argument that the will was not executed on the day on which it purports to be is without substance.

Regarding the next contention that the will is an unnatural one it has to be seen that the son had filed a suit for partition and in the B written statement the father had gone so far as to disown his paternity.

It is common ground that the relationship between Mani Ram and his son was greatly strained and it is not surprising that he has disowned him, in unmistakable terms in the will.

The submission that the will would not have been executed in mid 1959 is based on the plea that he had made a statement in December, 1959, that he had not alienated any property.

The son in the suit prayed for an C order against Mani Ram restraining him from alienating the joint family properties except with the permission of the court.

A consent order was passed directing Mani Ram not to alienate joint family properties.

There was no need for Mani Ram to mention about the will for it is not an alienation and in any event the will according to Mani Ram did not relate to joint family properties.

The nondisclosure of the execntion of the will is understandable because Mani D Ram did not want anyone particularly his son to know about his dispossessing of the property by will.

This ground also is without substance.

the main ground of attack was that on the face of it, it is apparent that the signature is not that of Mani Ram.

The appellate court E has found that Mani Ram was an illiterate person and that he had no standard signature.

His signature is not well formed, but his signature in the Vakalatnama and in the will bear striking, resemblance as found by the Bench of the High Court.

Though there are certain dissimilarities between the signature in the will and in those of admitted documents we are unable to say that the signature in the will is not that of Mani Ram.

In this connection we have examined the F evidence of the handwriting expert who gave evidence on behalf of the appellants.

We feel that .his qualifications are not such as to accept him as a handwriting expert.

He has hardly done any work as an expert after 1950 and we find in his deposition that he has exceeded the limits as an expert and supported the appellants in matters which were not within his province.

We have no hesitation in agreeing with the High Court and rejecting his testimony.

A com- G ment was made on the fact that the date and endorsement in the will is in a different ink and probably was not written at the same time.

Jn this connection a discrepancy in the evidence of the scribe, P.W. 2,

as to where actually the date was moted whether it was in his house or that of the lawyer's was made much of.

We do not think that this discrcpncy would affect the truth of the matter.

It is seen that P.W. 2 in his record entered summary of the will on the same H day.

It is significant that in the cross examination no question was asked challenging the genuineness.

The entry with regard to the will was made by P.W. 2 in the Register which is a publid register and on examination we find there is nothing suspicious about it.

may also be noted that the first appellant, the son of Mani Ram, has not stated that the signaure found in the will is not that of his father.

Apart from all these circumstances we find the evidence of P.W. l a respectable advocate, who speaks of his advising in the preparation of the will, his seeing the executant sign the will in his presence can be safely accepted.

Excepting that a statement which he made as a witness was rebutted by a District Judge nothing else bas been suggested against him.

We have no.hesitation in accepting the evidence of these two witnesses, as the two lower courts have done. There is no ground at all for rejecting the evidence of P.W. 2, the scribe, whose evidence has been accepted by both the courts. . The scribe had immediately noted the gist of the will in one of his regularly kept records which has not been challenged.

We have, therefore, no hesitation in accepting the finding of the two lower courts that the will is a genuine one and was executed by Mani Ram of his own free will.

Mr. Pai, counsel for the appellants, submitted that the High Court was in error in holding that item 1 (a) of the properties is the selfacquired property of Mani Ram.

According to the learned counsel the hereditary profession of Mani Ram was that of a priest and whatever he earned while practising that profession and all his acquisisions should be held to be jQint family property.

The evidence is that Mani Ram was not only a priest but worked in three posts.

He was a priest and at the same time was in the private office of the Maharaja and was also an A.D.C. of the Mabaraja and the Maharaja used to give presents to him.

It is in e; idence that the Mabaraja had given the land and himself constructed the Kothi before giving it to Mani Ram.

In support of the contention that the income derived from practice of a hereditary profession should be construed as ancestral property, the learned counsel referred us to two decisions in Ghelabhai Gavrishankar v. Hargowa11 Ramjl & Others('), and Hanso Pathak v. Harmandil Pathak and Another.( 2 ).

Neither of the cases support the contention of the learned counsel.

In the first case the question that arose for consideration was about the nature of the office of a hereditary priest.

It was held that the hereditary right of the priest is immovable property.

Chandavarkar J. pointed out that hereditary priesthood vested in particular families is regarded

ns vritti or immoveable property but we do not find any support for the contention that the income of the hereditary priest will also be hereditary property.

In fact in Hanso Pathak v. Harmandil Pathak and Anr. (supra) it has been made clear that in the United Provinces the income received as amounts paid by Yajamans at their discretion either by way of charity or by way of remuneration for personal services rendered by the priest, cannot be claimed as of right, and cannot amount to a family property. Chief Justice Sulaiman expressed his view that the income received as amounts paid by people at their discretion eiher by way of charity or by way of remuneration for personal services rendered cannot be claimed as of right amount to family property.

Mukerji, J. in a concurring judgment after distinguishing

I. I.LR. 36 Born. 94.

2. A.LR. 1934. All. 351.

Ghelabhai Gavrishankar v. Hargowan Ramji & Others (supra) held that the income is "Vidyadhana" which is the same thing as "gains of science" or what has been acquired by exercise of learning cannot be divided by partition.

We agree with the view thus expressed by the Allahabad High Court and find that the income from the practice of a hereditary profession will not be joint family property.

Mani Ram was getting Rs. 100 as A.D.C. and was in addition drawing a salary of Rs. 140 a month as an employee in the private Department of the Maharaja.

Thus he had ample means to acquire item 1 (a) of the property from his self-acquisition.

On the other hand there is hardly any evidence to prove that he had any ancestral nucleus.

It is stated that the family had some jewels and cash which were kept in the safe of the Maharaja and there is nothing to indicate that anything out of the cash or jewellery was used in purchasing item 1 (a) of the property.

I was also contended that the property that belonged to Mani Ram was only the house and not the land attached to the house.

We have no hesitation in rejecting this desperate plea. The result is we confirm the findings of the courts below that item 1 (a) of the property is the self-acquisition and the decree of the appellate court so far as item 1 (a) is concerned is confirmed.

Regarding items 1 (b) and 2 the, appellate court has found that they are joint family properties.

It is admitted by both the parties that under section 27 of the Jammu & Kashmir Hindu Succession Act, 1956, the interest of the coparacener in a joint Hindu family property can be disposed of by will.

Section 27 provides that any Hindu may dispose of by will any property which is capable of being disposed by him in law.

The Explanation to the section makes it clear that the interest of a male Hindu in a Mitakshara coparacenary property be deemed to be property capable of being disposed of by him within

the meaning of the sub-section. As the joint family consisted of Mani Ram and his son, the first appellant, the appellate court gave a decree in favour of the respondent so far as one-half share of items 1 (b) and 2 of the properties are concerned. The counsel for the appellant submitted that the appellate court was in error in determining the interest of the testator as one-half share in the two items of joint family property.

He submitted that 'according to Mitakshara law except in Madras when there is a partition between the son and his father, mother is entitled to a share equal to that of the son. In support of his contention the learned counsel referred to Mulla's Hindu Law, 14th Ed., p.403, paragraph 315, where it is stated that while the wife cannot demand a partition, bu if a parti.tion does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. To the same effect is the passage in Mayne's Hindu Law, 11th Ed., p. 534, paragraph 434, where it is stated

"According to the Mitakshara law, the mother or the gradmother is entitled to a share when sons or grandsons divide the family estate between themselves, but she cannot be recognised as the owner of such share until the division is actually made, as sbe has no pre-exis ting right in the estate except a right of maintenance." Reference

was also made to the decisions reported in Dular Koeri v. Dwarkanath Misser(1 ), where it was held that under the Mitakshara law when partition of joint family property takes place during the father's life.- time at the instance of the son, the mother of the son is entitled to a share equal to that of her husband and her son; and she is entitled to have the share separately allotted, and to enjoy that share when so allotted.

In Sumrun Thakoor v. Chunder Mun Misser & Others, (') it was held that under the Mitakshara law where a paration takes place between a father and a son, the wife of the lather is entitled to a share.

In Hosbanna Devanna Naik v. Devenna Sannappa Naik and Others('), it was held that a step-mother is entitled to a share on partition beween the father and his sons. In Partap Singh v. Dalip Singh, (4) in a partition between a Hindu father and his son it was held that the wife of the father has a right to a share equal to that of the father or the sons.

In Madras, tl1ough Mitakshara law is applicable it has been held that on a partition between the sons and the father, the mother is not entitled to any share. (Mulla's Hindu Law, 14th Ed., p. 403-"Madras State.-ln Southern India the practice of allotting shares upon partition to females has long since become obsolete.").

So far as Jammu & Kashmir is concerned there is no decisions regarding the interest of a male Hindu in property. This question as to what is the interest of Mani Ram in the joint family property at the time of his death was not, raised before the High Court. In fact, the case, of first appellant was that the joint family consisted of himself and his father alone, though in the partition suit filed by him he claimed one.- third share conceding that his father and mother are entitled to the other two-third share.

Though the question was not rnised in any of the courts below, we feel that being a pure question of law, interests of justice require that the question be decided.

The High Court will decide the interest which Mani Ram had in the joint family property at the time of his death which he could dispose of by his will. In remitting this question to the High Court, we decree he suit of the respondent in respect of item I (a) one-third share in items 1 (b) and 2 of the plaint schudule properties as to that extent her share is not questioned.

The question as to what is the extent of the interest as regards items 1 (b) and 2 of the plaint schedule properties which can be bequeathed by Mani Ram in favour of the respondent is remitted to the High Court for its determination.

If the High Court finds that the respondent is entitled to one-third share it will decide accordingly.

If it comes to the conclusion that Mani Ram was entitled to bequeath a greater share it will grant a decree accordingly.

There will be no order as to costs-appeal disposed of accordingly.

S.R.

(I) I.L.R. 31 Cal. 234.

(2) I.L.R. 8 Cal. 17.

(3) I.L.R. 48 Bom. 468.

(4) I.L.R. 52 All. 596.

Decree granted.

LAKSHMI CHAND KHAJURIA & ORS

ISHROO DEVI

March 31, 1977

A. C. GUPTA

P. S. KAILASAM, JJ.

s. 27

s. 27

25th May 1959

Purohxt Mani Ram

Purohit Mani Ram

s. 27

Kashmir Hindu Succession Act

1'1ani Ram

Mani Ram

Mani C Ram

Madras

Jammn

& Kashmir

s. 27

Kashmir Hindu Succession Act, 1956

G Mani Ram

Jammu & Kashmir High Court

G. B. Pai

S. K. Bagga

S. Bagga

P. Malhotra

K. J. John

Narain

KAILASAM

Article 133

25th May, 1959

Jammu

Janak Lal Sehgal

Supreme Court

Bodh Raj

Janak Lal

Janak Lal

Bodh Raj

Lodra Mani

Maharaja Pratap Singh

Maharaja's Puja

Philip Hardless

section 27

Kashmir Hindu Succession Act

Pai

Mani D Ram

Chandavarkar

United Provinces

Sulaiman

Mukerji

Allahabad High Court

section 27

Kashmir Hindu Succession Act, 1956

Section 27

Mitakshara

Mulla

Mayne

Jammu & Kashmir


• A

STATE OF PUNJAB & ANR. v.

PREM SUKHDAS & ORS.

April 1, 1977

(M. H. BEG, C.J., A. C. GUPTA AND P. S. K.AILASAM, JJ.]

Punjab Professions. Trades, Callines &:: Employnrents Taxation Act, 1956- SS. 2(b) and 3-Scope of. ,

Section 3 of the Punjab Professions, Trades, Callings and Employment& Taxation Act, 1956, imposes a tax in respect of a profession, trade, calling or employment carried on or followed within the State. Section 5 lays down the manner of determination of tax. on the gross income. The term "total gros&- income" is defined by s. 2 of the Act as "aggregate gross income derived from various professions, trades, callings and employments". The words "whether such profession or calling is followed, trade is carried on or employment iswithin or outside the State" were added to the section by an amendment of 1962.

Before the amendment of s. 2 (b), the High Court had taken the view th•t in determining the aggregate gross income, only the income derived within tire State by a calling, occupation, trade or profession must be taken into account for the purposes of taxation.

On the question whether the Act restricts taxation of income made within the State.

Allowing the State's appeal and remitting the case to tho High Court

HELD : By reading the provisions of s. 5 and s. 2 together, it is clear that the determination in accordance with the scale laid down in the Schedule, of the aggregate gross income on which tax is assessed, will have to take into account the income of the individual concerned earned both inside and outside. the S1aie.

[409 GJ

1 (a) The High Court has clearly erred in interpreting s. 3 in such a manner as to make s. 2(b) read with s. 5 of the Act, useless in determining the tax in accordance with the gradation laid down in the Schedule to the Act. This amounts nothing short of legislation.

[410 E-F]

(b) The only condition for making a person taxable under the Act is that he must also have some profession, trade, calling or occupation which is to be taxed, which he carries on within the State. It does not matter whethet the person is employed or carries on the same or other profession, trade, or calling outside the State also. Section 3 is only meant to indicate that the person who is to be made liable had carried on some profession, calling, trade, or occupation within the State and it has nothing to do with the calculation of the aggregate amount of the tax to be levied. That is dealt with by s. 5 read with

s. 2(b) as amended. Io determining the amount of tax, the amount an assessee

makes outside must also be added to what he makes inside the State. His total gross income determines only his grade or amount of tax he has to pay. His subjection to a profession or cal1ing tax depends only on the fact that he carriei on some business or has some trade or calling within the State. [410- A-CJ

2. The principle that v.here a provision is capable of one of two interpretations, the interpretation which validates rather the one which may invalidate a provision applies only where two views are possible. It cannot be pushed so far as to alter the meaning of the clear words used in an enactment and to repeal statutory provisions by making them useless without holding them to be void. [ 410 Fl

[The case was remanded to the High Court for deciding the validity of the amendment made to s. 2(b) of the Act]

CIVIL APPELLATE JuRISDICTmN : Civil Appeal Nos. 2152-2153 A. of 1968

(From the Judgments and Orders dated the 25.2.1966 of the Punjab andi Haryana High Coun in Civil Writ Nos. 2588 and 2392/ 1964)

V. C. Mahajan for the appellants (in CA 2152).

K. S. Suri and 0. P. Sharma, for the the appellants (in CA 1755) E. C. Agrawa/a, for respondent in CA 1754 Hardev Singh and R. S. Sodhi, for respondent in CA 1755 R. K. Mathur and V. Goswami, for respondent in CA 1497 N. N. Goswarny and A. Minocha, for respondent in CA 2153.

The Judgment of the Court was delivered by

BEG, C. J.-The only question decided by the High Court of Punjab

& Haryana in the cases now before us by special leave was whether section 3 of the Punjab Professions, Trades, Callings andi Employments Taxation Act, 1956 (hereinafter referred to as 'the Act') restricts taxation upon persons in Punjab to the income made within the State Dof Punjab.

This section reads as follows :-

"3. Levy of tax-Every person who carried on trade either by himself or by an agent or representative, or who follows a profession or calling, or who is in employment, either wholly or in part, within the State of Punjab, shall be liable to pay for each financial year or a part thereof a tax in respect of such profession, trade, calling or employment :

Provided that for the purpose of this section a person on leave shall be deemed to be a person in employment".

Section 4 of the Act provides for taxation in accordance with a schedule annexed to it.

Section 5 lays down the manner of determi- F nation of the tax which is to be assessed on the total "gross income".

Th~ term "total gross income" is defined by s. 2 of the Act as "aggregate gross income derived from various professions, trades, callings and employment".

The Legislature amended this provision by adding in 1962, "Whether such profession or calling is followed, trade is carried on or employment is, within or outside the State of Punjab" to the deifinition.

The annexed schedule, conformably with the pro- G visions of Article 276 of the Constitution does not tax any person, under the scale laid down in the schedule, to an extent more than Rs. 250/- per annum.

Nevertheless, it is clear, by reading the provisions of s. 5 and s. 2 together, that the determination in accordance with the scale laid down in this schedule of the aggregate gross income on which tax is assessed, will have to take into account the income of the individual concerned earned both inside and outside Punjab.

The result is that the only condition for making a person, taxable under the Act is that he must also have some profession, trade, calling

SUPREME COURT REPORTS

(1977] 3 S.C.R.

or occupation which is to be taxed, which he carries on within the State of Punjab. It does not matter whether that person is employed or carries on the same or some other profession trade, or calling outside Punjab also.

Section 3 is only meant to indicate that the person who is to be made liable has carried on some profession, calling, trade, or occupation within Punjab. It does nothing more. It has nothing to do with the calculation of the aggregate amount of the tax to be levied.

That is dealt with by s. 5 read with s. 2 (b) of the Act as amended.

And, in determining the amount of tax which .an assessee has to pay or the grade in which he falls, the amount he makes outside must also be added to what he makes inside Punjab.

His total gross income detrmines only his grade or amount of tax he has to pay.

His subjection to a profession or calling tax depends only on the fact that he carries on some business or has some trade or calling "within the State of Punjab". The words qualifying the whole or a part of the calling which determines only the taxability of the person cannot possibly, on the language used, fix also the grade of taxation in which the individual falls.

We, however, find that the Punjab High Court, in accordance with a view it had been consistently taking even before the amendment of s. 2(b) of the Act, has held that, in determining the aggregate gross income, only the income made within Punjab by the calling, occupation, trade, or profession carried on mu's! be taken into account.

We think that this view of the Punjab High Court is based on a very forced interpretation given to the clear words of s. 3 of the Act, probably because it thought it necessary to do so to make the effect of the section correspond to provisions of Article 245 (1) of the Constitution.

We think that the Punjab High Court has clearly erred in interpreting s. 3 in such a way as to make s. 2(b), read with s. 5 of the Act, useless in determining the tax in accordance with the gradation laid down in the schedule 2 of the Act.

This amounts to nothing short of legislation.

We think that the view is an impossible one.

The principle that, where a provision is capable of one of two interpretations, the interpretation which validates rather than one which may invalidate a provision applies only where two views are possible.

It cannot be pushed so far as to alter the meanings of the clear words used in an enactment and to, in effect, repeal statutory provisions by making them useless without holding them to be void.

It is true that the question of the validity of the provisions of the Act on the ground that they contravene Article 245 ( 1) of the Constitution was also raised in the High Court, but, the High Court left this question open as it held in favour of the assessee on the first question.

As the first question was decided by clearly misinterpreting the provisions of the Act as they stand, we have to allow these appeals.

A Division Bench of the High Court, in the judgment under, appeal, had purported to follow an earlier Division Bench decision of the High Court in Beli Ram v. The Assessing Authority('), which had interpreted the provisions of s. 3 of the Act as the Act stood before 1he amendment of s. 2 in the manner indicated above.

As the High

(I) 1960 P.L.R. 846.

Court had not decided the question of validity of the amendment these A cases cannot be disposed of without deciding that question.

We do not propose to express any opinion on this question as we do not have the benefit of the High Court's views on it.

In the circumstances mentioned above, we set aside the judgments and orders of the High Court on these cases. We send the cases back to the High Court for deciding the question of validity of the amend- B ment to s. 2 of the Act.

The parties will bear their own costs.

P.B.R.

Appeals allowed.

A

STATE OF PUNJAB & ANR

PREM SUKHDAS & ORS

April 1, 1977

M. H. BEG, C.J.

A. C. GUPTA

Employnrents Taxation Act, 1956

SS. 2(b) and 3

Section 3

Taxation Act, 1956

Section 5

s. 2

s. 2

s. 5

s. 2

s. 3

s. 2(b)

s. 5

Section 3

s. 5

s. 2(b)

s. 2(b)

V. C. Mahajan

K. S. Suri

0. P. Sharma

E. C. Agrawa

Hardev Singh

R. S. Sodhi

R. K. Mathur

V. Goswami

N. N. Goswarny

A. Minocha

BEG

High Court of Punjab

& Haryana

section 3

Punjab

Section 4

Section 5

s. 2

State of Punjab

Article 276

s. 5

s. 2

Section 3

s. 5

s. 2

State of

Punjab High Court

s. 2(b)

s. 3

Article 245

s. 3

s. 2(b)

s. 5

Article 245

s. 3

s. 2

High

(I) 1960 P.L.R. 846

s. 2


KANTA GOEL

B. P. PATHAK & ORS.

April 1, 1977

(V. R. KRISHNA IYER, R. S. SARKARJA AND JASWANT SINGH, JJ.)

Delhi Rent Control A.ct 19.58-Sec. 2(c)(l)-14--Go.,..1rnment officer required to vacate Government premistJ--Whether can obtain possession of two dwelling house3 let out to 1wo different tenant:r-Whether a co-owner can file a suit to evict a tenant-Definition of a landlord.

The respondent no. 1 is an Under Secretary in the Central Government. He WM in occupation of residential premises allotted to him by the Central Government and was required by the Government order to vacate such residential accommodation on the ground that he owned in Delhi a residential accommodation in his own name at Shakti Nagar. The Shakti Nagar House is a two storeyed house. 'fhe first floor was let out to the appel1ant-tenant and the ground floor to another tenant.

Relying on section 14A of the Delhi Rent Control Act, 1958, the respondent evicted the tenant on the ground floor. Thereafter, the re8pondent sought eviction of the appellant on the same ground. 'fhe Controller directed eviction refusing leave to the tenant to contest the application for eviction.

The Revision Application filed by the appellant before the High Court failed.

In appeal by special leave the appellant contended :

(1) In view of the eviction of the tenant on the ground floor the right of the respondent to evict the tenant under s. 14A was exhausted.

(2) The respondent no. l claims to be a legatee of the deceased landlord uuder a Wi11.

He has not got the \Vill probated.

(3) Respondent no. 1 is only one of the co-o, vners and, therefore, cannot file the application for eviction. ( 4) The respondent no. 1 has not let out the premises to the appellant and the premises does not stand in the name of the respondent no. 1.

At the hearing, the parties settled their dispute by agreeing that the appellant would vacate the first floor premises consisting of 4 rooms and shift to the ground floor and respondent no. 1 would be handed over the possession of the first :floor. The parties also agreed to certain adjustment in the rent.

Disposing of the appeal in terms of the compromise the Court observed :

(1) The landlord cannot use the same weapon of s. 14A in getting two dwelling houses vacated. It is contrary to the intendment of ~. 14A. The object of s. 14A is fulfilled once the landlord recovers immediate possession of his premises from one of his tenants. The right is exhausted thereby and is not available for continual applications for eviction against all other tenants holding under him.

This is made clear by the proviso to s. 14A(l) which makes plain that the section shall not be construed as conferring a right on a landlord owning two or more dwelling houses to recover possession of more than one dwelling house. Of course, it gives choice to the landlord to indicate the particular house among a plurality ov.rncd by him, the possession of which he intends to recover. [417 A-D]

(2) A co-owner is as much an owner of the entire property as any sole owner of the property. He owns every part of the composite property along with others and it cannot be said that he is only a part owner. The absence of other co-owners on record cannot disentitle the first respondent from suing for eviction. From the definitien of landlord in s. 2(c) and tenant in s. 2(1) when read in the context of the Rent Control Law is the simple sense of the situation is that there should be a building which is let. There must be a landlord who

collects rent and a tenant \\tho pays it to the one whom he recognises land- A lord.

The complications of estoppel or the concepts of the Transfer of Property Act need not necessarily or inflexibly be imported in the proceedings under the Rent Control Law, tried by special Tribunals under a special statute.

The Court left open the question if some co-owner seek eviction of a tenant and others i _ oppose it whether such application would be maintainable.

(416 C-E)

ClvIL APPELLATE JURISDICTION : Civil Appeal No. 764 of 1977.

(Appeal by Special Leave from the Judgment and Order dated the 21st January 1977 of the Delhi High Court in Civil Revision No. 654 of 1976).

F. S. Nariman, D. P. Mukherjee and G. S. Chatterjee, for the appellant

Prem Malhotra, for respondent No. 1

The Judgment of the Court was delivered by

KRISHNA IYER, J.-So heartening to the judges' bosom is the happy ending of a bitterly fought litigation where the law is declarecl

by the Court and justice is accomplished by the parties settling the differences, assisted by activist judicial suggestions and promoted by constructive counselling by advocates.

Such is the pleasing culmina- 0 tion cl this case which relates to an ejectment proceeding under section 14A of the Delhi Rent Control Act, 1958 (Act 59 of 1958).

The Controller directed eviction refusing leave to the tenant to contest the application for eviction.

The High Court, in the revision filed

b) the tenant, went into an elaborate discussion on many matters but somehow missed a plea fatal to the landlord's claim and affirmed the relief of eviction although on different grounds. The aggrieved tenant E sought special leave to. appeal which was granted and, thanks to tho landlord appearing by caveat even at the preliminary hearing, leave was granted and the appeal itself was heard the very next day. This at the Supreme Court level quick justice has been meted out and fortunately our judgment has resulted in a re-adjustment between the parties and, hopefully, the healing of the wounds of litigation.

A pro tracted forensic proceeding makes foes of friends, but a settlement ofl F the dispute in accordance with law and justice makes friends of foes.

Some facts need to be narrated for getting the hang of the case and the issues of law raised.

The respondent is an Under Secretary to Government in the Housing Ministry. He was in occupation of residential premises allotted to him by the Central Government and was required by government order to vacate such residential accommoda- G tion on the ground that he owned in Delhi a residential accommodation in his own name.

The building we are concerned with i~ 23/6, Shakti Nagar. It is a two-storeyed house but the litigation centres round part of the first-floor.

The whole building belonged to ono Pandit Saraswati Das who let out a portion of the first floor consisting of 4 rooms and a small enclosure somewhere in August 1968 to the appellant.

Shri Das died in 1972 leaving behind the 1 sf respon- H dilnt, two other sons (respondents 2 & 3) and a daughter (respondent

4). It may be stated even here that the proceeding before the Controller was started by the 1st respondent and an objection was raised

by the appellant that the other heirs of the late Das were necessary parties they were not impleaded at this stage although the Controller orderl'<l eviction over-ruling the objection.

The High Court however, irupleaded the other two sons and the only daughter (respondents 2 to 4) aud taking the view that their presence was necessary for the maintainability of the action, the learned Judge decreed eviction.

A crucial objection, lethal to the case of the landlord, considered by the Controller but negatived by him, was raised in the revision petition but was not adverted to or adjudicated upon by the High Court.

Before us Shri Nariman has pressed it again and the fate of this case, so far as we are concerned, rests on the validity of that point. The landlord-1st respondent, after receiving the order from government to vacate, as contemplated in section 14A of the Act, applied for eviction of another tenant who was occupying a three-room tenement on the first floor of the same building.

In fact, the first floor of the house consists of two dwelling apartments as it were, one consisting of three rooms and the other of 4 rooms.

By definition, 'premises means auy part of a building which is, or is intended to be, let separately for use as a residence ........ In the present case the three room tenement being part of a building and let separately to a tenant, fell within the definition of 'permises'.

Admittedly, the landlord exercise his right \Jnder section 14A to recover immediately passession of those premises.

He succeeded, secured possession and kept it vacant.

Even at the present time those premises which are adjacent to the suit premises are in his vacant possession.

Shri Narimau's argument is that while it is open to a landlord who is a government servant directed to vacate allotted premises, and clothed with a new right to recover possession of any premises let out by him, to exercise it once, he cannot repeat the exercise ad libitem and go on evicting every tenant of his by using the weapon of section 14A.

He relies on the proviso to section 14A(l) to reinforce his submission and we will deal with it presently.

Two other contentions urged by the appellant are t11at the first respondent is not his landlord and therefore is disentitled to evict him, under the Act, and secondly, the premises are not in his name and have not been let out by Jum.

In any case, the claim of the first respondent that the building in its entirety had been allotted by the late Shri Das by his will to the 1st respondent and his brother the 3rd respondent and that, subsequently, there had been an oral partition between the two whereunder the first floor was allotted in toto to the 1st respondent making him the sole owner and therefore the exclusive landlord, was contested by the appellant-tenant and this nlea should have been allowed to be raised by grant of leave under section 25B by the Controller.

The presence of the co-heirs at the High Court le"el was inconsequential. according to the appellant, and their absence at the trial stage vitiated the order of the Controller.

We will examine t11ese contentions briefly.

The scheme of the statute is plain and has been earlier explained b_y this Court with special reference to sections 14A and 25B.

The government servant who owns his house, lets it out profitably. and

occupies at lesser rent official quarters has to quit but, for that very purpose to be fulfilled, must be put in quick possession of his premises.

The legislative project and purpose turn not on niceties of llttle ver• balism but on the actualities of rugged realism, and so, the construction of section 14A(l) must be illumined by the goal, though guided by the word. We have, therefore, no hesitation in holding that section 14A(l) is available as a ground, if the premises are owned by him as inherited from propositus in whose name the property stood. 'In his name, and "let out by him', read in the spirit of the provision and without violence to the words o; f the section, clearly convey the idea

tht the premises must be owned by him directly and the lease must be under him directly, which is the case where he, as heir, steps into his father's shoes who owned the building in his own name and let it out himself.

He represents the former owner and lessor and squarely' falls within section 14A.

The accent on 'name' is to pre-empt the common class of benami evasions, not to attach special sanctity to nominalism.

Refusing the rule of ritualism we accept the reality of the ownership and landlordism as !]ie touchstone.

Nor do we.set much store by the submission that the !st respondent

is not a landlord, being only a co-heir and the will in his favour hav- D ing been disputed.

Equally without force in our view is the plea tlutt one co-lessor cannot sue for eviction even if the other co-lessors ,'have no objection. Section 2(e) of the Act defines 'landlord' thus :

"2 ( e) 'Landlord' means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or E on behalf of, or for the benefit of, any other person or as a trustee, guardi•an or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant."

'Tenant', by definition [s. 2(1)] means any person by whom or on , M1hose account or behalf the rent of any premises is payable.

Read F in the context of the Rent Control law, the simple sense of the situation is that there should be a building which is let.

There must be a landlord who collects rent and a tenant who pays it to the one whom he recognizes as landlord.

The complications of estoppcl or even the concepts of the Transfer of Property Act need not necessarily or inflexibly be imported into the proceedings under the rent control law, tried by special Tribunals under a special statute. In this case, rent G was being paid to the late Das who had let out to the appellant, on the death of the former, the rent was being paid by the 1st respondent who signed his name and added that it was on behalf of the estate of the deceased Das. At a later stage the rent was being paid to and the receipts issued by the 1st respondent in his own name. Not that the little change made in the later receipts makes much of a difference, but the fact remains that the tenant in this case had been H )'.l'aying the rent to the Jst respondent.

Therefore, the latter fell with- .in the definition of 'landlord' for the purposes of the Act.

We are

12-436SCI/77

not impressed with the investigation into the Jaw of real property and estoppel between )andlord and tenant, Shri Nariipa11 invited us to make.

A fair understanding of the relationship between the parites leaves little room for doµbt that the appellant was the tenant of the premises.

The 1st respondent, together with the other respondents, constituted the body of landlords arul, by consent, implicit or other

wise, of the plurality of landlords, one of them representing them all, was colkcting rent.

In short, he fµµctioned, for all practical purposes as the \arullord, and was therefore entitled to institute proceedings qua landlord.

This Court, in Sri Ram Pasricha(') clarified that a coowner is as much an owner of the entire property as any sole owner of the property is : "Jurisprudentially, it is not correct to say that a coowner of property is not its owner.

He owns very part of the composite property alongwith others and it cannot be said that he is only a part owner or a fractional owner of the property . . . . It is, therefore, not possible to 'accept the submission that the plaintiff, who is admittedly the landlord and co-owner of the premises, is not the owner of the premises within the meaniqg of section 13 (1 )(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of sectiol! 13(1) (f) as[ong as he is a co-owner of the property, being at .the same time acknowledged landlord of the defendants." That case also \Vas one for eviction uncjer the rent control law cf Bengal.

The law having been thus put beyond doubt, the contention that the abseqce of the other ccr.owner an record disentitled the first respondent froll! suing for eviction, fails.

We are not called upon to consider the piquant situation that might arise if some

of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co"owncr.

Shri Nariman urged that the "~II had not been proved and that he had not been given an opportunity to establish his challenge of the will of Shri Das.

Jn the f!igh Court t4e other co-heirs were parties and there is nothing on r!"cord to show that they objectecl to the claim of the 1st respondent to the first jjoor oq the strength of t)le will from his father.

An objection. for the sah of an objection which has qo realistic foundation, c; mnot be eqtertained seriogsly for the saJce of prpcessual punctiliousness.

We cjo not agree with the contrntion.

The last, and yet the lethal objection which had been lost sight of in the High Court, although raised there, loomed large before this Court, in Shd Nariman's arguments. The admitted fuct is that on the same ground of the government's order to vacate, the first respondent had eicted a dwelling house on the first floor and is keeping it vacant.

He is again using the same order to vacata passed by the government to evict the appellant's dwelling house. This is obviously contrary to the intendment of section l 4A ancl is interdicted by the provisu to section 14A(l). It is true that when an officer is sought to be evicted by the government from its premises he has to be rehabilitated in his own house by an accelerated remedial procedure provjd,

(1) (1976) 4 s.c.c. 1 ~4

ed by section 14A read with section 28B of the Act.

But this emergency provision available merely to put the government servant back into his own residential accommodation cannot be used as a weapon for evicting several tenants if he has many houses let out to various persons. The object of section 14A is fulfilled once the landlord recovers immediate possession of his premises from one of his tenants.

The right is exhausted thereby and is not available for continual applications for eviction against all other tenants holding under him.

Tiiis is m'lde clear by the proviso wllii:h makes plain that the section shall not be coµstrue4 as co11ferring a right on a landlord pwing two or more dwelling houses to recover possession of more thn oiie dwelling house.

Of course it gives him the choice since the proviso states that it shall be lawful for sµch hmdlord to indicate the particqlar dwel!iqg house among a plurality owned by him, possession of which he intends to recover.

He can ordinarily recover one dwelli11g house but no more. In the presi; nt case, admittedly Ile has recovered one dwelling house consisting of a three-room apartment on the first floor by using the precise ground under section 14A(l). It

110cessari!y follows that he cannot use section 141\ for cvj9ting the tenant-appellant from :mother dwelling house. 011 the !st grmmd, therefore, the appeal ml!st be allowed, although in the circumstmwes we direct tile parties to bear their costs throughoµt.

Counsel on both sides, 011 t!ie sl)ggestion by the court, calrnlated to produce a salutary relationship between the parties, agreed that the tljree, room dwelling house which lies vacant (having been evicted

un<ler section 14A) will be given possession of to the appellant in eJichange for the appellant making over possession of the 4-room apariment-the premises involved in the present case-together with the appurtenant space.

The appellant has agreed to pay a sum of Rs. ZSO/- per month by way of rent for the adjacent three-room apartment into which he will move, within on.e moqth from today

anf! surrender posS!'ssion of the 4-room apartment simultaneously.

In qse the parties are iable to adjust their differences and the 1st

repoqgnt makes over the additional space attached to the 4-room tenement for the use of (l)e appellant, he wi!J pay an e; o; tra sum of Rs. 75/- per me11sem or ot1'er p, egotiated figure.

On these terms

ijgree~ IP before us \)y cpµnsel on both sides, after taking instructions from their parties, we direct that the lst respon<jen( go mal!:e over possession of the t]j, ee-room .dwelling house on the !lrs( floor aqd take ill ewlJ; mge the •hrnom dw~)ling ho11se which is tile subjeet matter of the present eviction proceedings.

We record this undertaking as indicated above and with this 11), Qdjjjcation, 111J.ow t!le appeal.

P.ff, p.

Appeal allowed.

KANTA GOEL

B. P. PATHAK & ORS

April 1, 1977

V. R. KRISHNA IYER

JASWANT SINGH, JJ.

Delhi

Sec. 2(c)(l)

section 14A

Delhi Rent Control Act, 1958

s. 14A

s. 14A

s. 14A

s. 14A(l)

s. 2(c)

s. 2(1)

Transfer of Property Act

ClvIL APPELLATE JURISDICTION

Delhi High Court

F. S. Nariman

D. P. Mukherjee

G. S. Chatterjee

Prem Malhotra

KRISHNA IYER

section 14A

Delhi Rent Control Act, 1958

Supreme Court

Central Government

Pandit Saraswati Das

Das

Nariman

section 14A

section 14A

Narimau

section 14A

section 14A(l)

Jum

section 25B

sections 14A and 25B

section 14A(l)

section 14A(l)

section 14A

Section 2(e)

s. 2(1)

Transfer of Property Act

Ram Pasricha

section 13

Shd Nariman

section 14A(l)

section 14A

section 28B

section 14A

Ile

section 14A(l)

section 141

section 14A