MEHARBANSINGH

BHAGW ANTSINGH AND OTHERS

January 17, 1980

[P. N. SHINGHAL AND E. S. VENKATARAMIAH, JJ.]

Madhya Bharat Zan1indari Abolition Act, 1951-S. 4(2)-Scope of.

By virtue of section 3 ( 1) of the Madhya Bharat Zan1indari Abolition Act, 1951, rights of proprietors in villages, Muhalas and Chaks or blocks settled on the zamindari system vested in the State free from all encumbrances. In so far as the mortgages \Vere concerned a mortgage \vith possession \vhich existed on the date immediately preceding the date of vesting of the property was deemed to have been substituted by a simple mortgage.

The mortgagee who was in possession of lands under a deed of mortgage, for example a usufrnctuary mortgage, lost possession of the lauds bi operation of la\v and bis mortgage became e. simple mortgage from the date of vesting of the lands in the State.

On the other hand a mortgagor \vho was once the proprietor of the lands, though lost his proprietary right in the lands becaue of their vesting in the State, had to fulfil his obligation as a mortgagor to the extent of the amount secured under the mortgage. To alleviate the lot of such proprietors section 4(2) of the Act provided that notwithstanding anything contained in sub-section ( 1) a proprietor shall continue to remain in possession of his khud-kasht land so recorded in the annual village papers before the date of vesting. The expression khud-kasht is defined to 111ean "land cultivated by the Zamindar himself or through employees or hired labourers".

If a person was a zamindar and cultivated the land himself or through employees or hired labourers that would be his khud-kasht cu1ti\.ation within the meaning of section 2(c) of the Act, that is, in a given case if it v; as shown that a proprietor had khud-kasht land \vhich was so recorded in the annual village papers before the date of vesting of the lands in the State, he was entitled to continue to remain in possession of those lands.

Section 37(1) provides that every proprietor who is divested of his proprietary rights shall be a pacoo. tenant of the khud-kasht land in his possession and the land revenue payable by him shall be determined at the rates fixed by the current settlement for the same kind of land.

In the present case, the plaintiff's suit for redemption of the mortgage \Yhich was an usufructuary mortgage, was decreed by the trial court in respect of G the relief of redemption but the claim in regard to the mesne profits \Yas disallowed. Against that decree three appeals were filedbefore the District Court, one of them being the appeal by the plaintiffs challenging the refusal by the trial court to grant mesne profits. The plaintiff's appeal was partly allowed granting mesne profits from the date of deposit of the mortgage money in court. The other two appeals were dismissed. The matter v:as taken in appeal to the High Court by the defendants in second appeal. The plaintiffs ff also preferred a second appeal claiming full relief in so far as mesne profits were concerned. The High Court partly allowed the defendants' appeal holding that the plaintiffs were entitled to redeem the mortgage by paying the

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MEHARBAN SINGH V. BHAGWANT SINGH 791

mortgage money but were not entitled to get possession of the mortgaged ,.\ land, since according to the High Court, the proprietary rights including the right to get possession bad become vested in the State -under the aforesaid Act. It further held that the plaintiffs were only entitled to claim cornpensa tion from the Government in lieu of their proprietary rights after redeeming the mortgage by making payment of the n1ortgege money.

Against the decree of the High Court, the plaintiffs filed an appeal before this Court in Meharban Singh & Ors. v. Naresfz Singfz & Ors. [1970] 3 SCR 18.

This Court set aside 8 the decree of the High Court and remitted the case back to the High Court for a fresh decision on the question whether the lands in dispute were khud-kasht larxls and to p.:1ss a decree for possession if they were found to be so in view of sections 4(1)(f) and 4(2) of the Act. After the case went back to the High Court, the State Government was impleaded as a party to the suit and was· permitted to file a written statement. Certain additional issues were raised by the Higb. Court on the basis of the ne"v pleadings. The High Court C sent the case to the trial court for recording its finding on the issue 'whether the land in dispute was recorded as khud-ka.sht land immediately before the date of vesting?' after giving the parties an opportunity to adduce further evidence on the said additional issue and to resubmit the record to it.

The trial court held that the suit land was khud-kasht land in possession of the plaintiffs before the date of vesting of the estate and submitted the said find

ing to the High Court. The said finding was not in fact disputed before the D High Court. Aii that the High Court was to decide was whether the plaintiffs were entitled to the benefit of sub-section (2) of section 4 of the Act but the High Court once again took the view that the plaintiffs were not entitled to get possession of the suit lands although they were entitled to a decree for redemption. It is against the judgment of the High Court, the above appeal has been filed.

Allowing the appeal and restoring the decree of the Court of first appeal, E

HELD : When the case went back to the High Court all that the High Court was to decide was whether the appellant was entitled to the benefit of section 4(2) of the Act in terms of the directions given by this Court. Since the plaintiffs were the proprietors of the suit lands there can be no dispute that till the time of mortgage the suit lands were in their possession.

Secondly since the ]ands were recorded as khud-kas/lt lands of the mortgagors in the F annual vilJage papers before the date of vesting, they were clearly entitled to a decree for possession in terms of section 4(2) and there was no occasion for the High Court to examine the consequences of their losing the possession of the lands after the mortgage. When section 4(1) (f) read with s. 4(2) gave the mortgagor the benefit of the right to remain in possession of his khud-kasht, which we.s in his possession upto the date of mortgage, there could be no reason why it should bo denied to t:he plaintiffs. It was found •n G evidence by the first court of appeal that the mortgagors were themselves cultivating the lands and thereafter the mortgagee got them cultivated through his relatives.

Assuming that the mortgagee really inducted tenants in the lands, during the period of mortgage their tenure was bound to end on the redemption of the mortgage according to the ordinarylaw of redemption unless they could lay claim to protection under any other law. [797 E-H]

It is well settled that the normal law of mortgage would apply and tenants 8 inducted by the mortgagee would go out of the lands on redemption of the

13-91SCI/8~

SUPREME COURT REPORTS

[1980] 2 SC.II.

A mortgage if in the n1eanwhile the law has not been shown to intervene for their protection.

In the instant case 1he law expressly gave the benefit 11! section 4t2) to a proprietor like the plaintiffs.

The tenants inducted by the mortgagee would have no statutory right to possession .. 1800 A-B}

Mahabir Gopc and others v. Jlarbans l\7arain Singh and others [1952]'5.C.R. 775; Narihar Prasad Singh and Another v. Mst. of Munshi Nath Prasad and B others [1956) SCR 1; Asa Ran1 and anotl1er v. Mst. Rani Klili 1111d £1no1/icr [1958] SCR 986; Prabhu v. Ramdev and othm [1966] 3 S.C.R. 676. referred to.

Section 41 which deals with protection of tenancy rights of the n1ortgagees

annot be invoked by the mortgagees in the case of section 4(2). [800 BC]

'\ c C'rv!L APPELLATE JURls.IJICTION: Civil Appeal No. 2113 of ... 1972.

Appeal by Special Leave from the Judgment and Order dated 10-2-1972 of the Madhya Pradesh High Court in Second Appeal No. 310 of 1960.

D Shiv Dayal and J. S. Sinha for the Appellant.

M. C. Bhandare, Mrs. Urmila Kapoor and Shobha Dixit for the Respondent.

The Judgment of the Court was delivered by

SHINGHAL, J.

This appeal of one of the plaintiffs, by special leave, is directed against the jndgment of the Madhya Pradesh High Court dated February 10, 1972, by which the suit for possession of the lands, which the plaintiffs had mortgaged, has been dismissed even though the trial court's decree for redemption has been maintained.

As the matter has come up to this Court for the second time, at the instance of the plaintiffs it is not necessary to state all the facts for they have been mentioned in this Court's earlier decision is Meharbansingh and others v. Nareshsingh and others.(') It will be sufficient to refer to those facts which bear on the present controversy.

The suit lands belonged to Samle Singh, father of appellant Meharban Singh, and Jomdar Singh who executed a registered deed of mortgage in favour of Munshi Singh on May 20, 1939, for Rs. 2242/14/-. It is not disputed before us that it was a usufructuary mortgage of land within the area of the former Gwalior State. The mortgagors gave a notice to the mortgagee on May 15, 1943, for redemption of the lands but he. refused to accept. The mortgagors filed the suit for redemption on June 15, 1943.

As some other persons were alleged to be in possession of the suit lands, they were also impleaded

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'l!s defendants.

The Madhya Bharat Zamindari Abolition Act, 1951 •(Samvat 2008), hereinafter referred to as the Act, came into force on October 2, 1951, and leave was granted to the plaintiffs to amend the -plaint suitably. The trial court decreed the suit on October 10,

1958, but disallowed the relief for the grant of mesne profits. Three appeals were preferred against that judgment and decree of the trial court. The appellate court dismissed the appeals of the defendants . .It held that the suit lands were the khud-kasht lands of the, mortgagors,

nd allowed the appeal of the plaintiffs for mesne profits from the -date of the deposit of the mortgage-money.

The defendants went in second appeal to the High Court; and the plaintiffs also preferred an appeal for refusal of mesne profits from the date of the cause of action.

The High Court partly allowed the defendants' appeal by its judgment dated September 27, 1962. It relied on this Court's decision in Haji Sk. Subhan v. Madhorao(') and held that the plaintiffs were not entitled to possession.

It dismissed the appeal of plaintiff Meharbansingh.

He applied to this Court for special leave, and that led to this Court's decision in Meherbansingh's case (Supra) mentioned above.

This' Court allowed the appeal and, after considering the relevant provisions of the Act, remitted the case to the High Court for fresh decision after notice to the state on the point whether the suit land were Khud-kasht of the plaintiffs and they were entitled to remain in possession under 1>ection 4 of the Act. The State was therefore allowed to be impleaded as a party and to file a written statement. Certain additional issues were framed by the High Court and the case was remitted to the trial court for its findings.

When it came to the High Court again, with those findings it once again took the view that the plaintiffs were not

entitled to possession of the suit lands although they were entitled to a decree for redemption. It is against that judgment of the High Court dated February 10, 1973, that plaintiffs Meherbansingh has come up to this Court by way of the present appeal.

The facts of this case are thus quite simple, and its fate depends upon the answer to thz question whether the plaintiffs were entitled to possession of the suit lands under sub-section (2) of section 4 of the

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Act.

The Act made provision for the abolition and acquisition of the rights of proprietors in villages, "muhals", "chaks" or blocks settled on the zamindari system.

If therefore a person was a "proprietor" within the meaning of clause (a) of section 2, all his proprietary rights vested in the State free of all encumbrances by virtue of subn section (l) of section 3 of the Act from the date specified for the

(I) {1962] Supp. I S.C.R. 123.

794 SUPREME COURT REPOR'l S

A purpose in the notification issued by the State Government. It is not disputed that the sp2cified date for purposes of the present case was October 2, 1951.

The consequences of the vesting of an estate under section 3 have been stated in section 4.

We are not concerned with sub section (3) of that section, and it will be sufficient to refer to clauses

(a) and (f) of sub-section (1) and sub-section (2) of Section 4. Clause

(a) of sub-section (1) of section 4 provides that save as otherwise provided in the Act, the following consequences shall ensue notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force,-

"(a) all rights, title and interest of the proprietor in such area, including land (cultivable, barren or Bir), forest, trees, fishe1ies, wells (other than private wells), tanks. ponds, water channels, ferries, pathways, village-sites, hats, and bazars and mela-grounds and in all sub-soil, including rights, if any, in mines and minerals, whether being worked or not, shall cease a'nd be vested in the Stat>o free from all encumbrances;"

This provision therefore had the effect of terminating the propriel'ary rights of a proprietor in his estate and in vesting them in the State> free from all encumbrances. The legislature has taken care to deal with the fate of mortgages, in clause (f) of sub-section ( 1) of section 4, which reads as follows.-

"(f) every mortgage wit!h possession existing on the property so vesting or part thereof on the date immediately preceding the date of vesting shall, to the extent of the F amount s•2cured on such property or part thereof be deemed without prejudice to the rights of the State under ection 3, to have been substituted by a simple mortgage."'

So a mortgage with possession, which ex.isled on th-: date immediately preceding the date of vesting of the property, was deemed to have G been substitued by a simple mqrtgage.

That was to be so without prejudice to the rights of the State under section 3.

A mortgagee who was i'n possession of lands under a deed of mortgage, e.g. a usufructuary mortgagee, this lost possession of the lands by operation of the law, and his mortgage became nothing more than a simple mortgage from the date of the vesting of the lands in the State. In H other words, he lost possession of the lands which were once mortgaged with him with possession, and was left only with the normal right of a simple mortgagee to realise the mortgage money.

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' MEHARBAN SINGH v. BHAGWANT SINGH (Shinglzal, !.) 795

While that was the fate of the mortgagee under the Act, the fate -of the mortgagor, who was once the proprietor of the lands, was even worse, for he lost his proprietary rights in the lands because of their vesting in the State under section 3 as aforesaid and had, nonetheless, to fulfil his obligation as a mortgagor to the extent of the amount secured under the mortgag~. It appears that the legislature therefore thought of alleviating the lot of those of such proprietors whose cases fell under subsection (2) of section 4 of the Act.

The sub- :section reads as follows,-

" (2) No:withstanding anything contained in sub-<>ection •(I), the proprietor shall continue to remain in possession oI his khud-kasht land, so recarded in the annual village papers before the date of vesting."

"So only those proprietors were permitted to continue to remain in possession of their lands who had khud-kasht lands and the lands were recorded as khud-kasht in the annual village papers before the date of vesting.

The expression khud-kasht bas been defined in clause (c) of section 2 of the Act to mean, inter alia, land cultivated by the zamindar himself or through employees or hired labourers. Clause ( c) of section 2 of the Act states that words and expressions, used in the Act, but not defined in it, shall have the same me.aning as assigned to them in Qanoon Mal, Gwalior State, Samvat 1983.

The expression "zamindar" has been defined in clause ( 13) of section 2 of the Qanoon Mal to mean a person who has the rights mentioned in it. It is not disputed before us that the plaintiffs were zamindars under that definition, and were proprietors of their la'nds.

It is also not disputed before us that if a person was a zamindar and <:ultivated the land himself or through employees or hired labourers, that would be his khud-kasht cultivation within the meaning of clause ( c) of section 2 of the Act. It would follow that if, in a given case, it was shown that a proprietor had khud-kasht land which was so recorded i'n the annual village papers bdore the date of vesting of the lands in the State, he was entitled to continue to remain in possession of those lands.

This concession to the proprio>tor was by way of a rider to the rigorous provisions of section 3 of the Act regarding the vesting of his estate in the State, and if a proprietor was able to establish that ho was entitled to its benefit, there could be 'no reason why it should not be .allowed to him. It may be that the provision for the vesting of the estate in the State under section 3 and, in particular, that relating to the loss of possession of the mort- :gagee under clause ( f) of section 4, operated harshly on a mortgagee with possession, and he had to conte'nt himself with the other provi- -sions in the Act for the satisfaction of the debt owed to him by the

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proprietor, but the law allowed him nothing more after the date of the vesting of the estate in the State.

The lot of the mortgagor-proprietor was in fact far worse, for while the Act divested him of the proprietary interest in the lands held by him and vested those right& in the State, it held him liable as if his; mortgage was a simple mortgage and left him only with the remedy of claiming compe'nsation, which. was itself overridden with his liability to his creditors. In the plight in which he was placed by the land reforms legislation which was the. subject-matter of the Act, it was quite reasonable for the legislature. to allow him, notwithstandini anything contained in sub-section (l) of section 4 which e'numerates consequences of the vesting of the estate in the State, the benefit of what sub-sectiQn, (2) of that section;

provided, and that also on his satisfying the rigorous conditions of the sub-section mentioned above.

Reference in this connection may also be made to section 37 of the Act, sub-sectio'n ( 1) of which provi<fos that every proprietor who• is divested of his proprietary rights shall be "a pacca tenant of the khud-kasht land in his possession and the land revenue payable by him shall be determin2d at the rates fixed by the current settlement for the same kind of land." In fact, when this Court examined the matter on the earlier occasion, it topk notice of the above provision&

of the Act and observed as follows,-

"The proprietor however, notwithstanding other consequences of the vesting in a State, is entitled to continue to remain in possession of his khud-kasht land which is so recorded in the annual village papers before the date of vest-· ing.

Now it was clearly open to the plaintiffs to show that the land in question was khud-kasht and, therefore, in accordance with s. 4 they were entit:ed to remain in possession thereof."

In other \Vords, this Court took the view that while the mortgagor"

(appellants) fulfilled the other requirements of the law, their claim to possession of the khud-kasht lands under sub-section (2) of sectiorr

4 of the Act had to be decided on the basis of the facts, and it was open to them to show that the lands were khud-kasht and they were entitled to remain in possession in terms of sub-section (2) of section 4.

That was the purpose why the case was remanded to the High Court and an opportunity was give'n to the State to appear and contest the claim of the plaintiffs on that basis.

As has been stated, the case went back to the High Court which, in its turn, impleaded the State as a party to the suit, permitted it to file a written statement, added certain issues and sent the case t<>

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the trial court for submitting its findings after giving the parties an opportunity to adduce further evidence.

And wh>n it went back to the High Court with the findings of the trial court, the High Court stated as follows in its judgment under appeal,-

"After imp!eading the State as a party, the following issue, inter alia was remitted to the lower court for recording a finding after giving both the parties an opportunity to adduce evidence :

'"Whether the land in suit was recorded as khud-kasht immediately before the date of vesting."

The parties fild certain documents bnt did 'not adduce any oral evidence on the point.

The trial court has answered the issue in the affirmative.

It was not disputed before me that lhe land was recorded as Khud-kasht in the names oE the plaintiffs at the time of vesting,. .... "

There can be no doubt, therefore, that the trial court recorded the finding, on the basis of the 'vide'nce before it, that the suit lands were recorded as the khud-kasht lands of the plaintiffs before the date of the vesting of the "-state. That was in fact not disputed in the, High Court.

All that the Hi; h Court had then to do was to decide whether the appellant was entitled to the benefit of sub-section (2) of section 4 of the Act, for that was the clear direction of this Conrt in the earlier judgment.

It is not disputed before us that the plaintiffs were the proprietors of the suit lands, and it cannot be disputed that as they mortgaged them with possession with defendant Munshi Singh, they were themselves in possession upto the date of the mortgage, and as it has been found as a fact that the lands were recorded as khudkasht lands of the mortgagors in the annual village papers before the date of vesting, they were clearly entitled to a decree for possession in terms of sub-section (2) of section 4 and there was no .occasion for the High Court to examine the consequence of their losing the possession of the lands after the mortgage.

It has to be appreciated that possession is always lost by the mortgagor in the case of a mortgage with possession.

But when clause (f) of sub-section (1) of section 4 gave the mortgagor the benefit of sub-section (2) of that section to claim the right to remain in possession of his khudkasht land which was in his possession upto the date of mortgage, if the strict requirement of sub-s, ction (2) was shown to exist, there could be no reason why it should be' denied to the plaintiffs.

It may be mentioned In this connection that when the case came up in first appeal before the Second Additional District Jndge of Bhind,

he examined the statements of Himachal Singh DW 1, Ram Krishan DW 2 and Hanumant Singh DW 3. Himachal Singh was a cousin of mortgagee Munshi Singh, Ram Krishan DW 2 was a nephew of Munshi Singh and Hanumant Singh DW 3 was himself a defendant. On a consideration of their statemcn!s. the court of first appeal reached the conclusion that the mortgagors were themselves cultivating the land and thereafter the mortgagee got it cultivated through his relatives. But eve'n if it were assumed that the mortgagee really inducted tenants in the lands during the period of the mortgage, heir tenure was bound to end on the redemption of the mortgage according to the ordinary Jaw of pedemption unless, of course, they could Jay claim to protection under any other Jaw.

Reference in this connection may be made to the decision of this Court in Mahabir Cope and others v.

Harbans Narain Singh and others(') where the Jaw has been laid down as follows,-

"The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has.

A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee.

Further, the mortgagee, who takes p05session of the mortgaged property. must manage it as a persqn of ordinary prudence would manage it if it were his own; and he must not commit any act which is destructive or permanently injurious to the property; see section 76, sub-clauses (a) & (e) of the Transfer of Property Act.

It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by him must come to an end at redemption."

Care was taken to state further in that case that if during the permissible settlement by a mortgagee in possession with a tenant in the course of prudent management, any right sprang up in the tenant by conferral or creation by statute, that would be a "different matter altogether", for that would then be an "exception to the general rule."

The decision in Mahabir Gope's case (Supra) was applied or was followed in Harihar Prasad Singh and another v. Mst. of Munshi Nath Prasad and others(') where it was held as follows,-

"As the mortgagees are neither proprietors nor tenureholders as defined in the Act, the tenants holding under

(1) [1952] S.C.R.'775.

(2) [1956] S.C.R. I.

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them could not claim to be raiyats as defined in &Xtions 5(2) and 5(3), and no occupancy rights could therefore be acquired by them under section 21 of the Act."

That decision was again followed in Asa Ram and another v. Mst. Ram

Kpli and another(!) also, and was held as follows,-

"But where there is no such prohibition, the only consequence is that the parties will be thrown back on their rights under the Transfer of Property Act, and the lessees must still establish that the lease is blinding on the mortgagors under s.76(a) of that Act."

Reference may also be made to Prabhu v.

Ramdev and others(') C where again reference was made to the decision in Mahabir Gope

(supra) and the legal position was reiterated as follows,-

"Having made these observations, however, this Court bas taken th2 precaution to point out that even in regard to tenants inducted into the land by a mortgagee cases may arise where the said tenahts may acquire. rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation.

A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tehant conferred or created by statute ba&od on the 11ature of the land and possession for the requisite period, it was observed, was a different matter altogether.

Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act.

It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may cohceivably be improved by virtue of statutory provisions which may meanwhile come into operation.

That is precisely what has happened in the present case.

During the continuance of the mortgage s. 15 of the Act came into operation and that made the respondents Khatadars who are entitled to claim the benefit of s. 161 of the Act."

It is therefore well settled that the normal law of mortgage would apply and tenants inducted by the mortgagee would go out of the

fonds on redemption of the mortgago, if, in the meanwhile, law has H

(ll [19ssrs.c.R. 986.

not been shown to intervene for their protection.

As, i"n the instant case, the law expressly gave the benefit of sub-section (2) of section 4 to a proprietor like the appellant, the tenants Inducted by the mortgagee will have no statutory right of possession.

A vain a'.tempt was made to invoke section 41 of the Act for the protection of the tenancy rights of the mortgagees, but their learned Counsel was unable to show how they could claim th~ benefit of that section iu face of the dear provision of sub-section (2) of section 4 of the Act.

In fact all that Mr. Bhandare was able to contend on behalf of the respondents was that their case was covered by this Court's decision in Haji Sk. Subhat!'J case (supra). That decision formed the basis of the ear; ier decision of the High Court dated September 27, 1962, but this Court clearly pointed out in its earlier decision that the High Court was "in error in allowing the appeal before it and in dismissing the plaintiff-appellants' suit for possession on the authority of this Court's decision in the case of Haji Sk. Subhan" (supra). It is therefore not necessary for us to say, once again, why that decision cannot govern the present dispute.

In the result, we, allow the appeal and restore the decree of the court of first appeal with costs.

P.B.R.

Appeal allowd.

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MEHARBANSINGH

BHAGW ANTSINGH AND OTHERS

January 17, 1980

E. S. VENKATARAMIAH, JJ.

Abolition Act, 1951

S. 4(2)

section 3

Abolition Act, 1951

section 4(2)

section 2(c)

Section 37(1)

[1970] 3 SCR 18

sections 4(1)(f) and 4(2)

section 4

section 4(2)

section 4(2)

section 4(1)

s. 4(2)

section 4

[1966] 3 S.C.R. 676

Section 41

section 4(2)

D Shiv Dayal

J. S. Sinha

M. C. Bhandare

Urmila Kapoor

Shobha Dixit

SHINGHAL

Madhya Pradesh High Court

February 10, 1972

Samle Singh

Meharban Singh

Jomdar Singh

Munshi Singh

May 20, 1939

Gwalior

May 15, 1943

June 15, 1943

October 2, 1951

October 10,

1958

September 27, 1962

Meharbansingh

Meherbansingh

February 10, 1973

Meherbansingh

section 4

section 2

section 3

section 3

section 4

Section 4

section 4

section 4

section 3

section 3

section 4

section 2

section 2

section 2

section 2

section 3

section 3

section 4

section 4

section 37

s. 4

section 4

section 4

Munshi Singh

section 4

section 4

Himachal Singh

Ram Krishan

Hanumant Singh

section 76

Transfer of Property Act

Mahabir Gope

section 21

Transfer of Property Act

Transfer of Property Act

Transfer of Property Act

s. 15

s. 161

section 4

section 41

section 4

Bhandare

Haji Sk. Subhat!'J

Haji Sk. Subhan


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KUSA & ORS.

ST A TE OF ORISSA

January 17, 1980

[S. MuRTAZA FAZAL Au AND A. D. KosHAL, JJ.]

Supretne Cofltt (Enlargc1nent of Criminal Appellate Juri.1dic!ion) Act 1970, S. 2(a)-Scope.

Indian Evidence Act 1872, S. 32(1).

JJyi111: declaration-Evidentiary value of-Eyewitnesses account ittco-11siste11t C 'tt.ith dying declaration-Dying declaration if could be relied upon.

Dying declaration-Evidence of doctor that deceased was in a state of shocklnability of deceased to answer the last question of doctor-Whether invalidates the dying declaration.

Dying declaration-Deceased naming some other persons than accused-Such persons not challaned-Validity of dying declaration.

The appellants along with other accused persons were tried undr section 302/149 l.P.C. for cauging murder of two persons. While one of the deceased died on the spot tlre other wOO was removed to hospital, gave a dying declaration to the doctor before dying. The Sessions Judg'e finding that none of the. eye-\vitnesses examined was reliable and as the accused could not be convicted on the basis of their testimony acquitted all the accused. fle further held that the evidence of the eye-witnesses was rendered improbable and was in fact falsified by the dying declaration Ex. 9.

On appeal by the State, the High Court held that the dying declaration Ex. 9 was absolutely true and reliable and was sufficient to establish the prosecution case.

It accord- -- ingly convicted and sentenced the appellants to in1prisonment for life.

( In the appeal to this Court, it was contended on behalf of the appellants that ( 1) as the deceased was in a state of shock, it was unsafe to rely on the dying declaration, (2) as the dying declaration was incomplete it could not be acted upon, and ( 3) as the deceased had implicated some persons other than the accused, the dying declaration could not be said to be true.

Dismissing the appeal,

11'

...- HELD : I. The High Court was right in holding that even excluding: the evidence of the eyeMwitnesses the dying declaration is true and reliable and sufficient to found the conviction of the appellants. [808 FJ

2. The Sessions Judge committed an error in law in rejecting the dying declaration because if the evidence of the eyeMwitnesses was to be rejected on the ground that it \Vas inconsistent with the dying declaration, it would not necessarily follow that the dying declaration was also unreliable and unworthy of credence. [804 CJ

3. (a) This Court has held that whenever a particular view taken by authors of Medical Jurisprudence, is adumbrated, the same must be put -to -1

the doctor to assess how far the view taken by the experts apply to the facts of the particular case.

[805 G1

In the instant case though the doctor who had recorded the dying declaration had stated that the deceased was in a state of shock because he had received a serious injury in the abdomen w•hich had to be stitched, he woo however not crossed-examined as to the fact whether or not despite the ::.hock, the deceased had retained his mental faculties.

On the other hand, the last certificate given by the doctor towards the end of the dying declaration that the patient became semi-conscious clearly shows that the deceased was fully conscious wh'en he started making the dying declaration before the doctor. [804 H, 805 GJ

(b) A perusal of the entire dying declaration clearly shows that the doctor had asked all the necessary questions that could be asked from the deceased and the last question "what more you want to say" V/as merely in the nature of a formality. I-laving narrated the full story, there was no:hing more that the deceased could add.

The dying declaration was therefore not incon1plete one. [806 BJ

Cyril Waugh v. The King, 54 CWN 503, distinguished.

(c) Merely because some other persons named in the dying declaration were not challaned \Vould not by itself prove the falsity of the dying declaration.

It may be that these, persons were left out from the category of a-cused in the >E F.I.R. or the challan due to ulterior motives. [806 E, 805 CJ

4. A person on the verge of death is most unlikely to mn.ke an untrue statement unless prompted or tutored by his friends or relatives.

The shadow

of immediate death is the best guarantee of the truth of the staten1ent by ra dying person regarding the causes or circumstances leading to his death /- which are absolutely fresh in his mind and is untainted or discoloured bY If any other consideration except speaking the truth. It is for these reasons that the Statute (The Evidence Act) attaches a special sanctity to a dying declaration. [808 B-C]

5. It is well established that although a dying declaration should be carefully scrutinised if after perusal the Court is satisfied that the dying declaration is true and is free from any effort to pro1npt the deceased to 1nake a •G statement and is coherent and consistent, there is no legal impeditnent in founding the conviction on such a dying declaration even if there is no corroboration. [808 D-EJ

Khushal Rao v. The State of Bombay [1958] SCR 552,; Tarachand Dan1u Sutor v. The State of Maharashtra [1962] 2 SCR 775; Mannu Raja & Anr.

v. State of M.P. [1976J 3 SCC 104 referred to.

Rom Nath Madhoprasad & Ors. v. State of M.P. AIR 1953 SC 420, over- 1111ed.

• ' ..

• XUSA v. ORISSA (Fazal Ali, !.) ~03

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 53 of A. 1974.

From the Judgment and Order dated 2-11-1973 of the Orissa High Court in Govt. Appeal No. 10/1971.

Y. S. Chitale, and U. P. Singh for the Appellant.

D. Mookherjee and B. P. Parthasarthi for the ResPondent.

The Judgthent of the Court was delivered by

FAZAL Au J.-This appeal under s. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdicton) Act 1970 is directed against the judgment of the High Court of Orissa dated 2-11-1973 convicting the appellants u/s. 302/149 of Indian Penal Code and sentencing them to imprisonment for life.

The appellants along with other accused person were tried before the Sessions Judge under s. 302/149 for causing murder of two persons namely Ghansham and his brother Antarj>ami.

The Trial Court after considering the evidence acquitted all the accused of the charges framed against them.

Thereafter the State of Orissa filed an appeal before the High Court against the order of acquittal passed by the Sessions Judge and in the said appeal the High Court reversed the judgment of the Sessions Judge so far as the appellants were concerned and convicted and sentenced them as indicated above.

Hence this appeal before us.

The facts of the case are detailed in the judgment of the High Court and it is not necessary for us to repeat them. It appears that shortly before the date of occurrence, there was a partition suit between the parties in respect of certain properties enjoyed by accused Banshi and Ghana.

On 2-12-1968, according to the prosecution, the accused persons armed with lathis, Bhusas and valies came to the house of the deceased Ghansham and called him out.

When Ghansharn opened the door, the accused Banshi stabbed Ghansham on the chest as a result of which Ghansham fell down and died.

On hearing the alarm, the other deceased Antarjami who was brother of G.hansham went to the spot and he was also assaulted by the accused persons. This occurrence had t>aken place nearabout 7 .00

a.m. F. I. R. was sent to Bramhagiri Police Station where it was lodged and a case was registered.

After the usual investigation, police submitted charge-sheet against all the accused persons who were tried by the Sessions Judge with the result mentioned above.

It appears that the Trial Court after considering the evidence of the eye witness examined before it came to a clear finding that none

of the eye witnesses were reliable and he!lce the accused could not be convicted on the basis of their testimony.

One of the main considerations which swayed with the trial Court in coming to this conclusion was that in view of the dying declaration-Ex. 9 made by Antarjami, the evidence of the eye witnesses becomes improbable, and is in fact falsified.

The learned Sessions Judge also disbelieved the dying declaration as it was inconsistent with the oral evidence.

We might mention here that the Sessions Judge cqnun.ittcd an error of law in rejecting the dying declaration becaue if the evidence of the eye witnesses was to be rejected on the ground that it was inconsistent with the dying declaration then it would in the circumstances not necessarily follow that the dying declaration was also unreliable and unworthy of credence.

The High Court while endorsing the findings of the Trial Court that no reliance could be placed on the eye witnesses appears to have founded the conviction of the appellants mainly on the basis of the dying declaration-Ex. 9 recorded by Dr. Mohanty on 3-12-1968 at the hospital.

The High Court has given cogent reasons for holding that the dying declaration is absolutely true and reliable and was sufficient to establish the prosecution case against the appellants. We have also gone through the enjire dying declaration-x. 9 very carefully and we find that the statement mde by Antarjami is straight-forward, rational, consistent and absolutely coherent.

There appeoars to be a ring of truth in the statement made 1ty Antarjami.

Coumel for the appellant has fairly conceded that there is no evidence whatsoever to indicate that there was any possibility of prompting the deceased to make a tainted statement.

The dying declaration was attacked by the counsel for the appellant on three grounds. In

the first place, it was submitted that as the deceased Antarjami was in a state of shock, it was unsafe to rely on the dying declaration; secondly it was contended that as the dying declaration was incomplete, it should not be acted upon and thirdly it was pointed out that Antarjami had implicated some persons other than the accused also in the assault on him and his brother, therefore the dying declaration could not be said to be true.

So far as the first contention is concerned; namely whether the deceased was in a state of shock, it is true that the doctor who had recorded the dying declaration had stated that the deceased was in a state of shock because he had received a serious. injury in the U abdomen which has to be stitched.

The doctor was however not cross-examined as to the fact whether or not despite the shock, the deceased had retained his mental faculties.

On the other hand; a

• •

" ...

KUSA v. QR!SSA (Fazal Ali, J.) 805

bare perusal of the dying declaration and the coherent and consistent statement made by Antarjami clearly reveals the fact that the deceased was fully conscious and was not suffering from any confusion or hallucination.

The deceased has clearly stated the motive for the occurrence namely dispute about the partition.

He has also named the four appellants and stated that he aJld his brother were assaulted by valies and lathis and it is not disputed by the prosecution that the appellants were armed with these weapons. It is true that while naming the appellants, the deceased has also named some other persons but the mere fact tlrt those persons were not challaned does not detract from the value of the dying declaration because it may well be that what the deceased was saying was true and the persons who were left out from the category of accused in the F.I.R. or the challan may be due to ulterior motives.

Dr. Chitale however relied on a passage in Taylor's 'Principles and Practice of Medical Jurisprudence'-Twelfth Edition particularly on the following passage :

Assess very carefully the mental condition of the patient.

When shock ensues upon violence, especially when severe loss of blood or some grievous head injury is leading to de_ath, the intellect of the dying person becomes confused.

If the doctor observes any wandering or want of clearness in the mind of the JJ'atient, he must mention it in connection with his evidence; but this does not absolve him from his duty, 'although it should make him particularly careful when interpreting his notes."

We are unable to place any reliance on these observations in absence of any question put to the doctor by the accused in his crossexamination regarding the view expressed by the author regarding the state of mind of the deceased. It has been held by this Court in several cases that whenever a particular view taken ]:>y authors of medical jurisprudence is adumbrated, the same must be put to the doctor to assess how far the view taken by the experts apply to the facts of the particular case.

On the other hand, the last certificate given by the doct.or towards the end of the dying declaration that the paiient. became semi-unconscious clearly shows that the .deceased

s fully conscious when he started making the dying declaration before the doctor.

For these reasons therefore, the first ground taken by the appellant fails and is not tenable.

As to the second ground, namely that the dying declaration .was incomplete, we are unable to accept this contention q_ecause we find that the deceased

Antarjan_ii could oot answer the last question which was "what more you want to say"' because he became semi-unconscious and was unable to answer any further question.

A perusal of the enti-re dying declaration would clearly show that the doctor had asked all the necessary questio11s that could be asked from the deceased arid the last question was merely in the nature of a for.mality. It . is obvious that having narrated the full story there was nothing more

that the deceased could add.

We are therefor~ unable to hold that the prEsent dying declaration is an incomplete one.

Reliance was placed by the counsel for the appellant in the case of Cyril Waugh v.

The King, C)whcrein it was held that no reliance could be placed where a dying dechµation was incomplete.

Reference to the facts of the case would show that the statement made by the deceased was really incomplete in as much as the deceased was unable to complete the main sentence where he was trying to describe the genesis and motive of the occurrence.

The deceased in that case stated as "when he fired the short. he missed the other man.

The man has D an old grudge for me simply because .......... ". It is clear from the statement of the deceased in that case that the deceased wanted

o give the motive for the occurrence and other relevant facts which he could not say before the dying declaration was closed. This eoase therefore would have llD' application to the facts of the case.

As regards the last contention that the deceased had implicated some other persons also show that it was not true, we have already pointed out that merely because some other persons were named and not challaned would not by itself prove the falsity of the dying declartion. Finally on the question of law, it was argued that a dying declaration unless corroborated should not be acted upon.

Reliance was placed on a decision of this Court in Ram Nath Madhoprasad & Ors. v. State of M.P. ('). This decision, no doubt, supports the contention of the appellant but since then this Court has departed from the view taken in the case referred to above and has held that if the dying declaration is believed, it can be relied upo1'! for convicting the accused even if there is no corroboration.

In Khushal Rao v. The State of Bombay,(') it was pointed out that s. 32 (I) of the Evidence Act attaches special sanctity to a dying declaration and unless such a dying declaration can be sliown to be unreliable, it will not affect its admissibility. It was further

(I) 54 c.w.c. 503.

(2) A.T.R. 1953 S.C. 420, 423.

(3) [1958] S.C.R. 552, 563-564.

r .. /

KUSA v. ORISSA (Fazal Ali, !.) 807

held that although a dying declaration has to be closely scrutinised, once the Court comes to the conclusion that it is true, no question of corroboration arises.

In this connection, the Court made the followiog observations:-

"The Legislature in its wisdom has enacted in s. 32 ( 1) of the Evidence Act that "When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question", such a statement written or verbal made by a person who is dead (omitting the unnecessary

wods) it self a relevant fact.

This provision h_as been made by the Legislature, advisedly, as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross-examination, is not admissible.

The purpose of cross-examination is to test the veracity of the statements made by a witness.

In the view of the Legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in d;.inger of losing his life.

At such a serious and solemn moment, that person is not expected to tell lies and secondly, the test of cross-examioation would not be available.

In such a case, the necessity of oath also has been dispensed with for the same reasons.

Thus, a statement made by a dying person asto the cause of death has been accorded by the Legislature a special sanctity which should, on first principles, b":, respected.

'• ...

But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declllration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction."

In this case this Court did not approve of the law laid down in the earlier decision which is reported in A.LR. 1953, p. 420.

To the same effect is a later decision of this Court in the case of Tarachand Damu Sutar v. The State of Maharashtra(') which is a decision rendered by five Judges of this Court which has also taken the view that once a dying declaration is found to be true, it can be

(!) [1962] 2 S.CR. 775.

14-91SCI/80

acted upon without any corroboration.

Thus, the view taken by this Court by the three judges in A.LR. 1953, p. 420 stands overruled by this decision.

Same view was taken by this Court in the case of Mannu Raja & Anr. v. State of M.P.(') which has been relied upon by Mr. D. Mookherjee, counsel for the State.

There are a number of later decision of this Court also to the same effect but it is unnecessary to multiply authorities. It is thus manifest that a person on the verge of death i;; most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives.

In fact the shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding the causes or circumstaJ!ces leading to. his death wliich are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth.

I_t is for these reasons that the Statute (The Evidence Act) att:tches a special sanctity to a dying declaration.

Thus, if the statement of a dying person passes the test of careful scrutiny applied by the Courts, it becomes a most

reliable piece of evidence which does not require any corroboration.

Suffice it to say that it is now well established by a long course of decisions of this Court that although a dying declaration should be carefully scrutinised but if after perusal of the same, the Court is

atisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and eonsistent, there is no legal impediment in founding the conviction on iuch a dying declaration even if there is no corroboration.

For these reasons, therefore, we find ourselves in complete agree men! with the opinion of tlwHigh Court that even excluding the evidence of the eye witnesses, the dying declaration is true and reliable' Ii' and sufficient to found the conviction of the appellant.

For these reasons therefore the appeal fails and is accordingly dismissed.

N.V.K.

Appeal dismissed.

(!) [1976] 3 s.c.c. 104.

KUSA & ORS

ST A TE OF ORISSA

A. D. KosHAL, JJ.

S. 2(a)

Indian Evidence Act 1872

S. 32(1)

section 302

[1962] 2 SCR 775

AIR 1953 SC 420

Orissa High Court

Y. S. Chitale

U. P. Singh

D. Mookherjee

B. P. Parthasarthi

FAZAL Au

s. 2(a)

High Court of Orissa

s. 302

Indian Penal Code

s. 302

Ghansham

Antarj

ami

State of Orissa

Banshi

Ghana

Ghansharn

Antarjami

G.hansham

Bramhagiri Police Station

Mohanty

Chitale

Taylor

Cyril Waugh

s. 32

s. 32

Tarachand

[1962] 2 S.CR. 775

D. Mookherjee

N.V.K.


HARISH CHANDRA NIGAM

STATE OF U.P.

January 21, 1980

[N. L. UNTWALIA AND 0. CHINNAPPA REDDY, JJ.]

Defence of India Act, 1962, se!ctions 29 and 35(1) scope of-RequiSitioii , crders issued to the person actually in possession, but while issuing re'ijuisltion orders, possession ordered to be given to the State and not to the individuals .from whom taken-Propriety of the order.

The appellants in both the appeals were allotted a plot each "provisionally subject to the final approval of Government" and possession thereof was also given in 1956. Six years later by letter dated 31-10-62 they were informed that "the State Government has not approved the allotment in your favour and the provisional allotment made in your favour stands cancelled".

Steps were to be taken for the eviction as per the said Jtter of cancellation. but before any action was taken, the District Magistrate requisitioned the said plots for defence purposes under section 29 of the Defence of India Act, 1922. The letters of requisition were addressed to the apjiellants and poosession taken.

No steps were taken by the Department for taking formal -or symbolical possession of the plots in question after they were requisitioned 'by the Magistrate. Later on, while derequisitioning the said plots under section 35(1) of the Defence of India Act 1962, the Magistrate "specified the Director of Industries, Kanpur as the person to whom the possession of tlte said plots shall be given".

Possession was given accordingly and the Director of Industries in CA 560/70 in turn allotted the-plot covered in it to one Mrs. B. K.

Anand respondent 5 therein.

The writ Petitions filed by the appellants in the High Court challenging ...__ 1he said orders falled and hence the appeal by special leave.

Allowing CA 559/70 and dismissing CA 560/70, the Court,

HELD : Tb, e inquiry envisaged under sub section (I) of section 35 of the Defence of India Act, 1962, is necessitated only if facts and events taking place after' equition necessitate it.

Otherwise not.

As for example, sup pose, possession Of a property is taken from X and after requisition be dies and dispute starts between his heirs as to who is. entitled to get back the :Property. A summary and prima facie inquiry may be made under sul>s. (1) and property may be released in favour of the person who may be entitled to the possession of it in the opinion of the Government.

Of course such a decision would be subject to the adjudication of the rights of the parties in accordance with sub-s. (2). [814 C-BJ

Facts. anterior to the requisition are not necessary to be investigated for release of the property because the property has to be released in favour of the person from whom possession was taken. If it were not so then it would l>e enlarging the scope of the inquiry envisaged under sub-s. (I) of s. 35 of

B ~

A the Act and the power of the Government to adjudicate upon anterior title of the various claimants to the property.

This is not the scope of the inquiry. [814 E-F]

1"ecbnically speaking on a correct interpretation of the law the property on derequisition; ought to have been released in favour of the two appellants in the two appeals from whom possession was taken at the time of requi B sition.

The requisition was effected by an order in writing addressed to the person in possession of the property in accordance with sub-s. (2) of s. 29.

He may not be the owner of the property.

But on requisition possession was taken from him. [814 C-D, F-G] ,.. [The Court, however, passed a qualified and conditional order in terms]. _ _ c CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 559-560 of 1970.

Appeals by Special Leave from the Judgment and Order dated 24-1-1969 of the Allahabad High Court in Special Appeal No. 511 of 1968 connected with Special Appeal No. 512 of 1968.

D R. K. Garg and V. J. Francis for the Appellant.

Madan Bhatia for the Respondent.

The Judgment of the Court was delivered by

UNTWALIA, J.-These two appeals by special leave have been heard together as common questioos of law and fact are involved in them. We shall state the facts of Civil Appeal No. 559 of 1970 in which the appellant is Shri Harish Chandra Nigam.

The facts of the other appeal viz.

Civil Appeal No. 560 of 1970 in which the appellant is Shri Amar Singh are almost identical except ooe which shall be stated hereinafter.

The plot concerned in Nig:im's appeal is plot no. 60 aud in the other appe; ll it is plot no. 6.

Nigam made an application to the Director of Industrie~, Uttar Pradesh for allotment of the plot to him for industrial purposes. By an order dated November 22, 1956 the applimtion was "provisionally accepted subject to the final approval of Government." Finally hewas inforined by the Manager of Industrial Estate, Kalpi Road, Kanpur in his letter dated 31-10-1962 "that the State Government has not approved the allotment in your favour and the provisional allotment made in your favour stands cancelled." But it appears after the provision~] allotment Nigam was put in possession of the land.

Steps were to be taken for his eviction after giving information as to the cancellatfon

of the allotment in the letter aforesaid dated 31-10-1962. But before these steps were taken and possession was recovered from hinl the District Magistrate, Kanpur requisitioned the plot under section

.......

!< 29 of the Defence of India Act, 1962; hereinafter called the Act. This A. -order is dated 7-12-1963. The order reads as follows :-

~ )

' '

"Whereas in my opinion it is necessary and expedient to requisition unit no. 60 in the GovJ Industrial Estate, Kanpur specified below, of which you are the person in possession for efficient conduct of Milijary operatiogs.

And whereas the powers of requisitioning under Section 29 of the Defence of India Act, 1962 (Ct:; ntral Act. No. 51 of 1962) have been conferred on me by the Government of Uttar Pradesh under Notification No. 5589/18-I- LA/63, dated January 14, 1963 issued by Revenue (B) Department-/18 Bhardwaj, District Magistrate, Kanpur hereby requisition the aforesaid Unit and or_der that possession thereof be delivered by 11-12-63 to the General Manager, Ordnance Factory, Kalpi Road, Kanpur, after removing therefrom any furniture or other articles.

I further order that the Tahsildar, Kanpur shall arrange for the delivery of possession of the aforesaid unit to the General Manager, Ordnance Factory, Kalpi Road, Kanpur at the expiry of the period indicated above, if the possession is not delivered in compliance of"the above order."

Pursuant to the above order possession was taken from appellant 'Nigam on January 2, 1964 and was handed over to the General Manager, Ordnance Factory, Kanpur.

No steps were taken by the Industries department for taking formal or symbolical possession of the plot in question after it was requisitioned by the District Magistrate.

Then came the derequisitioned order pa_ssed by the District Magistrate under s. 35 of the Act on 20-1-1967. In passing it

may b_!' mentioned here that the appellant had kept his stores in two of the rooms standing in the land. But this fact is not very material for the purpose of_ deciding the matter in issue before us.

The de-requisition order reads as follows :-

"Regarding requisition of Unit No. 6 and 60 Industrial Estate for starting Artisan Training School by the 'Ordnance Factory, Kalpi Road, Kanpur.

ORDER

D '

Whereas the property specified in the schedule hereto B appended was requisitioned by the order of the District Magistrate, Kanpur dated 7-12-1963 until further order.

And whereas it has now been decided that the said property shall be released from requisition with immediate effect.

Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 35 of the Defence of India Act, 1962 (Act No. 51 of 1962), I, S. S. Sidhu, District Magistrate, Kanpur being the competent authority do hereby declare that the said property is released fro!Il requisition, and hereby specify the Director of Industries, Kanpur as the person to whom the poss<:SSion of the said property shall be given.

Thereupon the petitioner filed a writ petition in the Allahabad High Court to issue a writ in the nature of mandal!lus against the respondent directing to deliver possession of the property in dispute !o the appellant and not to deliver possession to any other person.

It appears, however, thaJ possession of the property had been given D to the Industries departme11t.

The petitioner unsuccessfu!Jy prosecuted his writ petition before the learned single Judge of the High

Court.

He failed in appeal also.

Hence the prese11t appeal. '

One extra fact which need be mentioned in regard to the case of Amar Singh is that after de-requisition and after possession of the E plot was taken by the Industries department of the Government of Uttar Pradesh the plot was allotted to Mrs. B. K. Anand, respondent no. 5 in CTvil Appeal No. 560 of 1970.

The other facts of his case are identical.

Learned Counsel for the appellants submitted before us that irrespective of the disputed question of fact whether there was final allotment in favour of the appellant or not, since requisition orde~ had l;>een served on him and possession had been taken from him, the property and its possession on de-requisition ought to have been released to him.

It could not be made in favour of the Industries department. Learned counsel for the State, on the other hand, submitted that since the appellant had not semblance of right, title or interest left in the plot after cancellation of the provisional allotment in his favour he had no locus standi to ask for a writ of mandamus for delivery of possession of the plot to him.

Direction was given for releasing the plot in favour of the Industries department and if

~ H the appellant is so advised he may recover possession of the plot on es.tabgshme.nt of his right, title or interest in the plot in a competent court in accordance with sub-s.(2) of section 35 of the Act.

It was

\ I

further submitted in case of Amar Singh that the plot had been A allotted to -:Mrs. B. K. Anand and she c_annot be disposessed now.

We shall read the two provisions first and enunciate the law engrafted in them and .then proceed to pass the final orders in the two appeals as their respective facts and circumstances may warrant.

Sections 29 and 35 read as follows :--

"29. (l) Notwithstanding anything contained in any other law for the time being in force, if in the opinion of the Central Government or the State Government it is necessary or expedient so to do for securing the defence of India, civil defence, public safety, maintenance of public order or efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any immovable property and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning :

Provided that no property or part thereof which is exclu sivdy used by the public for religious worship shall be requisitioned.

(2) The requisition shall be effected by an order in writing addressed to the person deemed by the Central Government or the State Government, as the case may be, to be the owner ur person in possessiop. of the property, and such order shall be served in the prescribed manner on the person to wl, om it is addressed.

(3) Whencver any property is requisitioned under subsection ( 1), tl1e period of such requi§.ition shall not extend beyond the period for which such property is required for any of th~ purposes mentioned in that sub-section.

35. (1) Where any property requisitioned under section 29 is to be released from such requisition, the Government by which or under whose authority the property was requisitioned or any person generally or specially authorised by it in this behalf may, after such inquiry, if any, as it or he may in any case, consider necessary to make or cause to be made, specify by order in writing the person to whom possession of the property shall be given and such possession shall, as far as practicable, be given to the person who

SUPREME COURT REPORTS Ll98UJ 2 S.C.R.

appears to the Government or, as the case may be, the person authorised as aforesaid, to be entitled to the possession of the property at the time such order is made.

(2) The delivery of possession of the property to the person specified in the order under sub-section ( 1) shall be a full discharge of the Government from all liabilities in respect of the property, but shall not prejudice by any rights in respect of the property which any other person may be entitled by due process of law to enforce against the person to whom possession of the property is delivered."

The requisition was effected by an order in writing addressed to the person in possession of the property in accordance with sub-s.

(2) of s. 29.

He may not be the owner of the property.

But on requisition possession was taken from him.

The inquiry envisaged under sub-s. (1) of s. 35 is necessitated only if facts and events taking place after requisition necessitate it.

Otherwise not.

As for example, suppose, possession of a property is taken from x and after requisition he dies and dispute starts between his heirs as to who is entitled to get back the property. A summary and prima fade inquiry may be made under sub-s. (1) and property may be released in favour of the person who may be entitled to the possession of it in the opinion of the Government.

Of course such a decision would be subject to the adjudication of the rights of the parties in accordance with sub-s. (2). Facts anterior to the requisition are not necessary to be investigated for release of the property because the property has to be released in favour of the person from whom possession was taken. If it were not so then it would be enlarging the scope of the inquiry envisaged under sub-s. (1) of s. 35 of the ;.ct and the power of the Government to adjudicate upon anterior title of the various claimants to the property.

This is not the scope of the inquiry.

It is, therefore, clear to us that technically speaking on a correct interpretation of the Jaw the property on de-reguisition ought to have been released in favour of the two appellants in the two appeals from whom possession was taken at the time of requisition. But on the special facts of these two appeals we do not feel persuaded to make our unqualified or unconditional order in these appeals filed on grant of special leave under Art. 136 of the Constitution as justice requires only a qualified and conditional order.

It is plain on the facts placed before us that there was no final allotment of the plots in favour of the appellants.

The allotment was only provisional subject to the approval of the Government.

Possession had been given to them and before requisition the Industries

S~-Lf1.1M

.department had not recovered back possesion of either of the two A plots. In such a situation we make the following orders in the two appeals separately.

Civil Appe.al No. 559 of 1970.

The possession of plot no. 60 is directed to be delivered to appel- 11 fant Nigam within a period of six months from today. If during the

said period of six months the Government takes adequate and legal -steps for takirig back fo; mal possession of the plot from him, then lJOSsession need not be delivered back to Nigam.

But on their failure to do so our girection will hold good and possession of plot no. 60 will have to be given to Nigam subject to its recovery back by C the Government even later. It will be open to the aggrieved party, if necessary, to initiate a proceeding in accordance with sub-s. (2) of s. 35.

We allow this appeal in part to the extent and in the manner indicated above.

Civil Appeal No. 560 of 1970.

Since in this case allotment of the plot was made in favour of Mrs. B. K. Anand, we do not consider it just and expedient to direct the Government to take steps for completing the formality of taking • possession and to dispossess Mrs. Anand.

On the special facts of '>this case we dismiss this 11ppeal in toto.

There will be no order as to costs in either of the appeals.

'\/.D.K.

C.A. 559 /70 allowed.

C.A. 560/70 dismissed.

HARISH CHANDRA NIGAM

STATE OF U.P

January 21, 1980

N. L. UNTWALIA

0. CHINNAPPA REDDY, JJ.

Defence of India Act, 1962

section 29

Defence of India Act, 1922

section 35(1)

Defence of India Act 1962

Kanpur

B. K.

section 35

Defence of India Act, 1962

s. 35

s. 29

Allahabad High Court

D R. K. Garg

V. J. Francis

Madan Bhatia

UNTWALIA

Harish Chandra Nigam

Amar Singh

Nig

im

Nigam

Nigam

District Magistrate, Kanpur

Defence of India Act, 1962

Section 29

Defence of India Act, 1962

Government of Uttar Pradesh

January 2, 1964

s. 35

Section 35

Defence of India Act, 1962

S. S. Sidhu

B. K. Anand

section 35

B. K. Anand

Sections 29 and 35

Central Government

India

section 29

s. 29

s. 35

s. 35

Art. 136

s. 35

Anand


ARVIND @ ABASAHEB GANESH KULKARNI & ORS.

ANNA @ DHANPAL PARISA CHOUGULE & ORS.

January 22, 1980

(N. L. UNTAWALIA AND 0. CHINNAPPA REDDY, JJ.J

Mortgage-Minor brothers alleged that mortgage was not for legtil necrssity and that the sale was for inadequate consideration-Elder brother discharged' family debts-Small part of consideration not accounted for-Sale-Validity of.

A mortgagor executed twodeeds of n1ortgage in favour of the faU1er of the appellants for Rs. 1600 and Rs. 1000 in respect of certain lands.

Both the mortgages were possessory mortgages but the land was leased back to the mortgagor for a stipulated rent.

The mortgagor died leaving behind him three sons, one adult and two minors.

The adult son borrowed a further sum of Rs. 131 by executing a simple mortgage and purporting to act as the fanager of the joint family and the guardian of his minor brothers, executed a deed of sale in favour of the father of the appellants in respect of four out of ten items of land previously mortgaged.

The consideration for the sale was Rs. 3050 which was made up of Rs. 1600. Rs. 1000 and Rs. 131 due under three previous mortgages respectively and Rs. 200 received in cash on the date of sale.

The minor sons on becoming major filed a suii out of which this appeal arises. for a declaration that the sale deed e.xecuted was not for legal necessity, nor for the benefit of the estate and, therefore, not binding on them.

They also prayed for joint possession of their 2/3rd share.

The trial conrt found that there was legal necessity for the sale to the extent of Rs. 2600 only, the consideration of Rs. 3050 for the sale was inadequate as the lands were worth about Rs. 400 and that there was no compelling pressure on the estate to justify the sa.le and therefor'e the sale was not for the benefit of the family and hence not binding on the plaintiffs.

A decree was granted in their favour for joint possession of 2 /3rd share of the lands subject to certain payment to the second defendant. On appeal by the second defendant, the Assistant Judge held the suit of the first plaintiff to be barred by time and therefore modified the decree in favour of the second plaintiff.

On appeal by the first plaintiff and second defendant, the High Court allowed the appent by the first plaintiff and dismissed the appeal filed by the second defendant. -

Accepting the appeal of the legal representatives of the second defendant,

HELD : Out of the sale consideralion of Rs. 3050 there was undoubted' legal necessity to the extent of Rs. 2600 the total amount due under the tv"o deeds of mortgage executed by the father of the plaintiffs.

Out of the ten items which were mortgaged, only four were sold and the remaining six items were released from the burden of the mortgages. The f.amily was also relievecf from one burden of paying rent to the mortgagee under the lease.

All this.

was for the benefit of the family, The value of the land svld under the deed of sale was found by the Courts below to be Rs. 4000.

Even if that be so it cannot possibly be said that the price of Rs. 3000 was grossly inadequate.

Further there were continuous dealings between the family of the plaint~1s and the fan1ily of the second defendant over a long course of years.

In thi!SO circumstances it is impossible to say that the sale was not binding on the plaintiffs.

The Courts below appeared to think that notwithstanding the circumstanc'e that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale. When the mortgagee was himself the purchaser and when the greater portion of the consideration went in discharge of the morgages no question of enquiry regarding pressure on the estate would arise at all. Where ancestral property is sold for the purpose of discharging debts incurred by the father and th& bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration it not accounted for will not invalidate the sale. [819 A-E]

Gauri Shankar & Ors. v. Jiwan Singh & Ors. A.I.R. 1927 P.C. 246 /Viamat Rai & Ors. v. Din Dayal & Ors. 1927 A.I.R. P.C. 121, Ram Sunder Lnl & another v. Lachhmi Narain and anothet' A.I.R. 1929 P.C. 143; HanoonJan Persaud Pondey v. Mt. Babooee Munrai Koonweree [1955] 6

M.I.A. 393;

Radhakrishendas and another v. Kaluram A.I.R. 1967 S.C. 574, referred to.

D,...

Ba/mukand v. Kam/a Wati & Or!. A.I.R. 1964 S.C. 1385 held inapplicable.

CIVIL APPELATE JURISDICTION : Civil Appeal Nos. 216-217 of 1970.

Appeals by special )eave from the Judgment and Order dated 3-12-1968 of the Bombay High Court in Second Appeal Nos. 1232 and 1214/1961.

V. S. Desai, R. B. Datar and Lalit Bhardwaj and Naveen Sinha '- for the Appellants.

S. V. Tambwaker for the Respondent.

The Judgment of the Court was delivered by 11

CH!NNAPPA REDDY, J.-On April 15, 1930 Parisa Chougule, executed Exhibit 93, a deed of mortgage in favour of Ganesh, Dattotraya Kulkarni (father of the appellants) for a sum of Rs. 1600 in respect of single item of land.

On August 25, 1933, Parisa Chougule executed Exhibit 92 another deed of mortgage in favour of Gthe same mortgagee for a sum of Rs. 1,000 in respect of ten ite<ns of land including the land previously mortgaged under Exhibit 93.

Both the mortgages were possesso1y mortgages but it appears from evidence that the land was leased back to the mortgagor for a 5tipulated rent.

Parisa Chougule died on June 15 1934 ieavino behind , b him three sons, Bhupal an adult and Anna and Dhanpal, minors. On fl July 11, 1934, Bhupal borrowed a further sum of Rs. 131 and executed a simple mortgage Exhibit 91 in respect of the very ten

items of land covered by Exhibit 92.

On May 1, 1935, Bhupal purporting to act as the Manager of the joint family and the guardian of his minor brother executed a deed of sale Exhibit 90 in favour of Ganesh Dattatraya Kulkarni in respect of four out of the ten items of land mortgaged under Exhibits 93, 92 and 91.

The consideration for the sale was Rs. 3050 and was made up of the amounts of Rs. 1600 Rs. 1000 and Rs. 131/- due under three mortgages Exhibits 93, 92 and 91 respectively and a sum of Rs. 200 received in cash by Bhu; ml on the date of sale.

Six of the items which were mortgaged were released from the burden of the mortgage_s.

On September 23, 1946, Anna second son of Parisa became a major.

On August 31, 1951, Dhanpal third son of Parisa became a major. On August 27, 1953 Anna and Dhanpal filed the suit out of which this appeal arises for a declaration that the sale deed dated May 1, 1935 was not for legal necessity and not for the benefit of the estate and therefore, not binding on them.

They also prayed that joint possession of their two third share may be given to them. The Trial Court found that there was legal necessity for the sale to the extent of Rs. 2600 only, that the consideration of Rs. 3050 for the sale was inadequate as the lands were worth about Rs. 4000, that there was no such compelling pressure on the estate as to justify the sale and therefore, the sale was not for the benefit of the family a_nd hence not binding on the two plaintiffs.

A decree was granted in favour of t_he two plaintiffs ., for joint possession of two third share of the lands ubject to their paying a sum of Rs. 133/5 ans/4 ps. to the second defendant. On appeal by the second defendant the Assistant Judge, Kolhapur affirmed the finding of the Trial Court that there was legal necessity to the > extent of Rs. 2600 only, that the value of the land was Rs. 4,006 and that there was no pressure on the estate justifying the sale. The Assistant Judge found that there was no evidence to show that the .defendant made any bonafide enquiry to satisfy himself that there. was sufficient pressure on the family justifying the sale.

He however, held that the suit of the first plaintiff was liable to be dismissed as it was barred by limitation.

He, therefore, modified the decree of the Trial Court by granting a decree in favour of the second plain-

• tiff only for possession of a one third share in the lands subject to /""- payment of a sum of Rs. 866.66 ps. to the second defendant.

The first plaintiff as well as the second defendant preferred second appeals to the High Court.

The High Court allowed the appeal filed by the first plaintiff and dismissed the appeal filed by the second defenilant.

The legal representatives of the second defendant have preferred these appeals after obtaining special leave from this Court under -f Arfclc J 36 of the Constitution.

It is clear that these appeals have to be allowed.

The facts narrated above show that out of the consideration of Rs. 30.50 for the sale there was undoubted legal necessity to the extent of Rs. 2600 the total amount due under the two deeds of mortgage executed by the father of the plaintiffs. Out of the ten items of land which were mortgaged, only four were sold and the remaining six items were released from the burden of the mortgages.

The family was also relieved from the burden of paying rent to the mortgagee under the lease deed.

Surely all this was for the benefit of the family.

The. value of the land sold under the deed of sale was found by the Conrts below to be Rs. 4000.

Even if that be so it cannot possibly be said that the price of Rs. 3000 was grossly inadequate. It has further to be remembered that there were continuous dealings between the family of the plaintiffs and the family of the second defendant, over a long course of years.

In those circumstances it is i, mpossible to agree with the conclusion of the courts below that the sale was not binding on the plaintiffs.

The conrts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale.

We are unable to see any substance in the view taken by the courts below.

When the mortgagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgagors, we do not see how any question of enquiry regarding pressure on the esta\e would arise at all.

Where ancestral property is sold for !he purpose of discharging debts incurred by the father and the bulk of the proceeds of the s_aJe is so accounted, the fact that a small part o_f the consideration is

- not accounted for will not invalidate the sale. In Gauri Shankar &

Ors. v. liwan Singh Ors.(') it was found that Rs. 500 out of the price of Rs. 4000 was not fully accounted for and that there was legal DICessity for the balance of Rs. 3500. The Privy Council held that' if the purchaser had acted honestly, if the existence of a family necessity for a sale. was made out and the price was not unreasonably low, the purchaser was not bound to account for the application of the whole of the price.

The sale was upheld. In Niamat Rai and Ors. v. Din Dayal and Ors.(') the manager of a joint family sold family property for Rs. 34,500 to saisfy pre-existing debts of the extent of Rs. 38,000. It was held that it was sufficient to sustain the sale without showing how the balance had bn applied.

(!) A.LR. 1227 P.C. 246.

(2) A.I.R. 1927 P.C. 121.

In Ram Sunder Lal & Anr. v. Lachhmi Narain and Anr.(') ., the vendee the sale in whose favour was questioned fourteen years after the sale, was able to prove legal necessity to the extent of Rs. 7744 out of a total price of Rs. 10, 767. The Privy Council after quoting a passage from the well-known case of Hanoomanpersaud Pandey v.

Mt. Babooee Munrai Koonweree,(') upheld the sale.

The principle of these decisions has been approved by this Court in Radhak; ishandas and Anr. v. Kaluram. (').

The learned counsel for the respondents relied upon the decision of this Court in Balmukand v. Kam/a Wati & Ors.(') That was a suit for specific performance of an agreement of sale executed by the

manager of the family without even consulting the other adult members of the family.

The object of the sale was not to discharge any antecedent debts of the family nor was it for the purpose of securing any benefit to the family.

The only reason for the sale of the land was that the plaintiff wanted to consolidate bis own holding. The Court naturally found that there was neither legal necessity nor benefit to the estate by the proposed sale and the agreement therefore, could not be enforced.

We do not see what relevance this case has to the facts of the present case.

We aordingly allow the appeals and dismiss the suit with cost throughout.

N.K.A.

(1) A.I.R.1929 P.C.143

(2) (1955) 6 M.I.A. 393.

(3) A.I.R. 1967 S.C. 574.

(4) A.LR. 1964 S.C. 1385.

Appeals allawed.

\ . ~

ARVIND @ ABASAHEB GANESH KULKARNI & ORS

ANNA @ DHANPAL PARISA CHOUGULE & ORS

January 22, 1980

0. CHINNAPPA REDDY, JJ

V. S. Desai

R. B. Datar

Lalit Bhardwaj

Naveen Sinha

S. V. Tambwaker

CH!NNAPPA REDDY

Ganesh

Dattotraya Kulkarni

Parisa Chougule

Bhupal

Anna

Dhanpal

July 11, 1934

May 1, 1935

Ganesh Dattatraya Kulkarni

Bhu

September 23, 1946

Anna

August 31, 1951

Parisa

August 27, 1953

Kolhapur