S.C.R.

SUPREME COURT REPORTS

MUMMAREDDI NAGI REDD! AND OTHERS

PITTI DURAIRAJA NAIDU AND OTHERS

[MEHR CHAND MAHAJAN, MuKHERJEA and

VIVIAN BosE JJ.]

Hindu Law-widow-Surrender-Release in favour of daughter and son-in-law-Validity-Suit by reversioner-Right to mesne profits.

Where a Hindu widow who had inherited her husband's estate executed a deed, described as a deed of release, in favour of her daughter who w;; s the next reversioner and the daughter's husband jointly :

Held, that though under the Hindu Law it is open to a widow to surrender the estate to the next reversioner even though the btter is a female heir, a widow cannot validly surrender in favour of the next female heir and a stranger jointly. Such a transaction cannot be treated as a surrender in favour of the female heir and a transfer by the latter to the stranger, and is not binding upon the ultimate reversioners.

/agrani v. Gaya (A.I.R. 1933 All. 8%) approved.

Nobo Kishore v. Harinath (1.L.R. 10 Cal. 1102) commented upon.

Vytla Sitanna v. Marivada (L. R. 51 I.A. 200), Rangasami Goundan v.

Nachiappa Goundan ( 41 I.A. 72) and Debi Prasad v. Gola Bhagat (1.L.R. 40 Cal. 721) referred to.

In a suit by the reversioner to set aside an alienation made. by a Hindu widow mesne profits can be awarded to the reversioner from the date of the widow's death even though such an alienation is not void.

Even in cases where the decree for possession in favour of the reversioner is conditional on his depositing the amount which has been found to have been used for the benefit of the estate, mesnc profits can be awarded to the re<versioner if he is ordered to pay interest on the amount payable to the alienee.

Bhagwat Dayal v. Debi Dayal (L.R. 35 I.A. 48) and Satgur Prasad v. Harinarain Singh (L.R. 59 I.A. 147) referred to.

Banwarilal v. Mahesh (l.L.R. 41 All. 63) distinguished.

CIVIL

APPELLATE No. 51 of 1950.

JURISDICTION ; Civil Appeal

Appeal against the Judgment and Decree dated the 12th January, 1948, of the High Court of Judicature at Madras (Gentle C.J. and Satyanarayana Rao J.) m

MayB.

!951

Mummareddi

Nagi Reddi

and Others

Pitti Durairaja

Naidu and Others.

Mukherjea. J.

Appeal No. 167 of 1945 arising out of decree dated the 17th August, 1942, of th~ Subordinate Judge at Nellore in 0. S. No. 3 of 1940.

K. Rajah Aiyar (R. Ganapathi Iyer, with him) for the appellants.

B. Somayya (M. Krishna Rao, with him) for the respondents.

1951. May 8. The judgment of the Court was delivered by

MuKHERJEA J.-This appeal is directed against an appellate judgment of a Division Bench of the Madras High Court dated the 12th January, 1948, reversing in part, a decision of the Subordinate Judge of Nellore passed in 0. S. No. 3 of 1940.

To appreciate the material facts of the case and the controversy that now centres between the parties, it would be convenient to refer to a short genealogy which is given below :-

I Durairaja Plff. I.

U da tha Narayanappa :_Chanchamma ( d. 1933)

I Venkata Narasamma (d. "1926) -Pitti Rangayya (d. 1914)

I I Vcnkatadri-Rajakantamma

I Rajavathi Plif. 2.

Balakrishna Plff. 3.

Krishnababulu Plff. 4.

The properties in dispute which are described in schedule A to the plaint admittedly belonged to one Narayanappa who was the father of the paternal grandmother of the plaintiffs. Narayanappa died intestate sometime before 1884 leaving him surviving his wife Chanchamma and a daughter named Venkata Narasamma.

Narasamma was married to one Pitti Rangayya and they had a son named Venkatadri, who was. the father of the plaintiffs. Chanchamma died in

March, 1933, and the plaintiffs aver that they being the heritable bandhus of Narayanappa as the daughter's son's sons of the latter and there being no nearer heir in existence, they became entitled to all the properties left by Narayanappa on the death of his widow.

It appears thar on 22nd February, 1894, Chanchamma executed, what has been described as a deed of release, in favour of her daughter Narasamm; i and her son-inlaw Pitti Rangayya, under which the entire estate of Narayanappa came into the possession of the latter.

After the execu.tiol.1 of this document, the daughter and

n-in-law of Chaachamma began to deal with the properties left by Narayanappa as their' own and entered into various transactions on that footing.

Pitti Rangayya died in 1914 and Narasamma followed him in 1926.

There are six items of property comprised in schedule A to the plaint.

Of these items, 4 and 5 were sold by Venkata Narasamma along with her son, the father of the plaintiffs, on July 9, 1922, to the 5th defendant and the father of defendants 6 to 9 for a sum of Rs. 6,500.

Again, on October 26, 1929, when both Narasamma and the plaintiffs' father were dead, item 1 of schedule A was sold by the mother of the plaintiffs as their guardian to the 1st defendant for a consideration of Rs. 33,000.

Defendants 2 and 3 are the undivided sons of the 1st defendant.

There are other transfers in favour of other defendants in the suit but they are not the subject-matter of the appeal before us.

The plaintiffs' allegations in substance are that these alienations are not binding on them as the so-called deed of release executed by the widow could not and did not operate as a deed of surrender and any transfer effected on the strength of this deed by Venkata Narasamma or her son, Venkatadri, or even on behalf of the plaintiffs by their mother as guardian, could not be operative after the death of the widow. As these transfers were made during the lifetime of Chanchamma and without any legal necessity, the plaintiffs as actual reversioners were not bound by them and they are entitled to recover possession of the properties

Mummareddi Nagi Reddi

arzd Others

Pitti Durairaja Naidu and

Others.

Mukhajea. J.

Mwnmaredtli

Nagi Reddi

and Olhtrs

Pitti Darairaja

Naidu and Othm

Mukli•rj•a J.

by evicting the transferees.

It was for the recovery of possession of these properties that the present suit was brought and there was a claim for mesne profits as well from the date of the widow's death to the date of delivery of possession.

The defence of the defendants who are interested in the properties mentioiy:d above, were really of a threefold character.

It was contended in the first place that the plaintiffs were not the next reversionary heirs of Narayanappa and consequently were not entitled to succeed to the estate of the latter on the death of the widow. The second contention was that the deed of release operated as a surrender of the widow's estate in favour of the daughter who was the next reversioner and although by such a surrender the daughter could get only a limited estate which she would have been entitled to on the death of the widow, yet as the daughter died in 1926, the present suit which was instituted more than 12 years after the date of death, was barred by limitation. The third plea was that in any event, these alienations could not be set aside as they were justified by legal necessity.

The learned Subordinate Judge who heard the suit decided it adversely to the plaintiffs. It was held first of all that though the plaintiffs were the heritable bandhus of Narayanappa, the evidence adduced by them fell short of establishing that there were no agnatic relations or nearer heir in existence. As regards the document of release (Exhibit P. 6) executed by the widow in favour of her daughter and son-in-law, the Subordinate Judge came to the conclusion that the deed operated as a surrender of the widow's estate and as the daughter died in 1926, the plaintiffs' suit was barred by limitation.

On the question of legal necessity, the finding recorded by the Subordinate Judge was that the sale deed (Exhibit D-1) executed in favour of the lst defendant was supported by legal necessity to the extent of Rs. 5,061 and odd annas and that the other document under which defendants 5 to 9 claimed title was not binding on the estate

at all, In the result, the plaintiffs' suit was dismissed in its entirety.

Against this dc; cision, the plaintiffs took an appeal to the High Court of Madras and the appeal was heard by a Division Bench consisting of Gentle C. J. and Satyanarayana Rao J. The learned Judges allowed the appeal in regard to the items of property mentioned above and reversed the, decision of the trial Judge to that extent It was held that the plaintiffs were the nearest reversionary heirs of Narayanappa and that the ded of release did not operate as a surrender of the widow's estate. The plaintiffs were given a decree for possession in respect of item 1 of the schedule propertie~ as against defendants 2 and 3 on condition of their depositing into court the sum of Rs. 5,061, and odd annas, that being the amount of debt legally binding on the estate which was discharged out of the sale proceeds of the transfer, and there was a further direction to pay interest upon this amount: at the rate of six per cent per annum from certain specified dates up to the date of making the deposit. It may be noted here that the 1st defendant died after the trial Court's decree and his interest passed by survivorship to defendants 2 and 3, who are his undivided sons.

As against defendants 5 to 9, there was an unconditional decree for recovery of possession in respect . of items 4 and 5 of schedule A. The plaintiffs were further given a decree. for mesne profits, both past and future, commencing from the date of the widow's death down to the date of delivery of possession, and the amount of mesne profits was directed to be ascertained in a separate proceedings under Order XX, rule 12 of the Code of Civil Procedure.

It is against this decision that the present appeal has been preferred by defendants 2, 3 and 5 to 9. '

Mr. Rajah Aiyar, appearing for the appellants, did not seriously challenge the finc:\ing of the High Court as to the plaintiffs being the nearest reversioners at the time of. Chanchamma's death. He has assailed the propriety of the High Court's decision substantially on two points.

His first contention is that the deed of

Mummareddi

Nagi Reddi and Others

Pitti Durairaja

Naidu and Others

Mukherjea J.

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Mummartddi Nagi Reddi and Others

Pitti Durairaja Naidu and

Others

Mukherjea J.

release (Exhibit P-6) executed by Chanchamma had the effect of a surrender of the widow's estate in favour of her daughter and son-in-law and the daughter having died in 1926, the plaintiff's suit was barred by limitation.

The second ground urged is that the High Court should not have given the plaintiffs a decree for mesne profits from the date of the widow's death.

Mesne profits could at best have been allowed from the date of the institution of the suit and so far as defendants 2 and 3 are concerned against whom a conditional decree was given, mesne profits could be allowed only from the time when the condition was fulfilled by the plaintiffs' depositing the specified amount in court.

The first point taken by the learned counsel for the appellants raises the question as to the legal effect of the document (Exhibit P-6), upon which the defendants mainly base their contention. The document is more than 50 years old and language of it is not very clear or definite.

It begins and ends by saying that it is a deed of release.

It says that as the executant is a woman unable to look after her wordly affairs and as the persons in whose favour the document is executed are the son-in-law and daughter of the executant, she has put the latter in possession of all her properties, movable and immovable.

Then comes a description of the properties and after that the provisions run as follows:-

"Therefore you shall yourself pay the quit rent, etc., payable herefor every year to the Government and enjoy the same permanently from your son to grandson and so on hereditarily.

For my lifetime you shall pay for our maintenance expenses Rs. 360 per year every year, before the month of Palguna of the respective years."

The remammg clauses of the deed eniom upon the recipients thereof the duty of realizing all debts due to the executant by other people and also of paying all just debts due by her.

It is stated finally that the lands are under an izara lease executed by the widow in favour of one Narasimha Naidu which is due to expire

by the end of 1346 Fasli and it would be for the daughter and son-in-law to consider what they would do with regard to the lease.

There are no words of transfer used in the deed, though the widow purports to endow her son-in-law and daughter with hereditary rights of enjoyment in the property.

The document is described as a release and is stamped as such.

Apparently it comprises all the properties which the widow had, and in a sense the document indicates an intention on the part of the lady to give up all connection with business affairs.

Prima facie, these facts lend support to the story of surrender.

It is not and cannot be disputed that there can be a surrender even when the next reversioner is a female heir herself who takes a limited interest in the property, though such surrender cannot give her a larger interest than she would get as an heir under the law of inheritance. The whole difficulty in this case, however, is created by the fact that the widow purports to exercise her right of relinquishment of her husband's estate in favour of two persons, one of whom is a next heir, but the ot:P.er, though related to her as son-in-law, is a complete stranger so far as rights of inheritance are concerned; and there can be no doubt that she intended that her husband's estate should go to the son-in-law jointly with her own daughter.

The doctrine of surrender . or relinquishment by the widow of her interest in the husband's estate which has the effect of accelerating the inheritance in favour of the next heir of her husband is now a well-settled doctrine of Hindu law which has been established by a long series of judicial decisions. Though the judicial pronouncements cannot be said to be altogether uniform or consistent, yet there can be no doubt as regards the basic principle upon which the doctrine rests, namely, that it is the self-effacement by the widow or the withdrawal of her life estate which opens the estate of the deceased husband to his next heirs at that date. "It must be remembered" thus observed the

Mummareddi

Nagi Reddi and Others v.

Pitti Durairaja and Naidu

Others

Mukherjea J.

Mummareidi

Nagi Reddi and Others

Pitti Durairaja Naidu and Others

Mukhtrjta J.

Judicial Committee in Vytla Sitanna v. Mariwada(') "that the basis of the doctrine is the effacement of the widow's estate and not the ex facie transfer by which such effacement is brought about.

The result merely is that the next heir of the husband steps into the succession in the widow's place". This effacement may be effected by any process and it is not necessary that any particular form should be employed.

All that is required is that there should be a bona fide and total renunciation of the widow's right to hold the property and the surrender should not be a mere device to divide the estate with the reversioners : vide Rangasami Goundan v. Nachiappa Goundan (2). It would be clear from the principle underlying the doctrine of surrender that no surrender and consequent acceleration of estate can possibly be made in favour of anybody except the next heir of the husband. It is true that no acceptance or act of consent on the part of the reversioner is necessary in order that the estate might vest in him; vesting takes place under operation of law.

But it is not possible for the widow to say that she is withdrawing herself from her husband's estate in order that it might vest in somebody other than the next heir of the husband. In favour of a stranger there can be an act of transfer but not one of renunciation. The position is not materially altered if, as has happened in the present case, the surrender is made in favour of the next heir with whom a .stranger is associated and the widow purports to relinquish the estate in order that it might vest in both of them.

So far as the next heir is concerned, there cannot be in such a case a surrender of the totality of interest which the widow had, for she actually directs that a portion of it should be held or enjoyed by somebody else other than the husband's heir.

As regards the stranger, there can be no question of renunciation; the trausaction at the most may be evidence of an intention to confer a bounty on him, though such intention is not clothed in proper legal form.

(1) L. R. 61 I.A. 200 at 207.

(1) L.R. 41 I.A. 72.

Mr. Rajah Aiyar made a strenuous attempt to induce us to hold that the docume11t is. a composite document combining really two separate transactions, one, an act of surrender by the widow of tfie entire estate in favour of her daughter and the other a transfer of a portion of the interest which thus vested in the daughter in favour of her husband. If the document could be read and interpreted that way, obviously the decision should be in favour of the appellants; but, in our opinion, there seem to be difficulties and those of an insuperable character in the way of the document being interpreted as such.

Neither in form nor in substance does the document purport to be a relinquishment of the entire widow's estate in favour of the daughter alone, nor is there any indication that the interest intended to be given to the son-in-law was being received by him by way of transfer from the daughter.

The document is not one executed by the widow and her daughter jointly in favour of the son-in-law containing a recital of relinquishment of the estate by the widow in favour of the daughter and transferring a portion of the same to the son-in-law.

The daughter does not figure as an executant of the deed nor even as an a, testing witness. She is the recipient of the deed along with her husband and it is

impossible to spell out of the document either that she received the entire estate on renunciation by her mother or transferred or even consented to transfer a

portion of it to her husband.

Mr. Aiyar in support of his contention placed great reliance upon the principleenunciated in' the Full Bench decision of the Calcutta High Court in Nobokishore v. Harinath(1) whiCh was impliedly accepted by the Judicial Committee in Rangasami Gounaan v. Nachiappa Goundan(2). It was held by the Calcutta High Court in a number of cases which were reviewed and affirmed in Nobokishore v. Har.inath(1), that a widow is entitled to sell or transfer the

(1) 1.L.R. 10 Cal. 1102.

Mummartrldi

Nagi Reddi

and Others

Pitti Durairaja

Naidu and Others.

Mukherjea J.

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Mummareddi Nagi Reddi

and Others

Pitti Durairoja

Naidu and

Others.

Mukherjea J.

entire estate of her husband without any necessity but with the consent of the next reversioner so as to bar the rights of the actual reversioner at the time of her death.

This was explained by the Judicial Committee as an extension of the principle of surrender in Rangasami Go2mda11 v. Nachiappa Goundan('). "The surrender, once exercised", observed their Lordships, "in favour of the nearest reversioner or reversioners, the estate became his or theirs, and it was an obvious extension of the doctrine to hold that inasmuch as he or they were in title to convey to a third party, it came to the same thing if the conveyance was made by the widow with his or their consent.

This was decided to be possible by Nobokishore's case (') already cited.

The judgment went upon the principle of surrender, and it might do so for the surrender there was of the tvhole estate : but it is worthy of notice that the order of reference showed that the alienation was ostensibly on the ground of necessity, so that it might have been supported on the grounds to be mentioned under the second head above set forth."

It would be quite consistent with established principles of law if the widow relinquishes her interest in the husband's estate and the reversioner in whom the estate vests transflers the estate either in whole or in part to another person.

If the transfer is of the entire estate, the two transactions may be combined in one document and the widow and the reversioner might jointly transfer the whole estate to a stranger but the implication in such cases must always be that the alienee derives his title from the reversioner and not the widow.

The extension of this doctrine in the class of cases of which Nobokishore v. Harinath (2 ) may be taken as the type seems to be rather far-fetched and somewhat anomalous.

In these cases the effect of the immediate reversioner's giving consent to the iilienation of the whole estate by the widow to astranger has been held to import a double fiction : the first is the fiction of a surrender by the widow in favour of the consenting reversioner and the second is the fiction of

(') I.L.R. 46 I.A. 72. (') I.L.R. I 0 Cal. II 02.

a trasfer by the latter to the alienee, although both fictions are contrary to the actual facts. It is difficult to say in the first place why a surrender should be presumed at all when the widow gives the property directly to the stranger and not to the reversioner.

Even if this position is assumed, then also the question arises as to how the consent of a party can take the place of a conveyance which is requisite for the purpose of vesting title in a transferee.

A consent merely binds the consenting party or anybody else who derives his title from him. If the actual reversioner at the date of the widow's death is the same person who gave his consent, obviously he can be precluded from challenging the transfer; but if the actual reversioner is a different person, there seems to be no justification for holding that he would be bound by the consent expressed by a person who had nothing but a chance of succession at that time and which chance did not materialize at all. (See observations of Mahajan J. in Ali Mohamad v. Mst. Nughlani (1)). Sir- Richard Garth C. J. in his judgment in Nobokishore v.

Harinath (2) expressed considerable doubt as. to the propriety of the view which would make a sale by thewidow with the consent of her reversioner stand on the same footing as an actual renunciation. But in view of a series of previous decisions of the court he was constrained to accept that view as correct.

It may be necessary for this court at some time orother to reconsider the whole law on this subject. Ir seems probable that the Privy Council did not subject the decision in Nobokishore's case to a critical examination from the point of view of the doctrine of surrender,. as the transfer in that case was upheld on the ground of legal necessity as well. For the purpose of the present case we will proceed on the assumption that the law laid down in Nobokishore's case is correct.

But the doctrine should certainly not be extended any further.

As was feliciously expressed by Sir Lawrence Jenkins, "The road to the decision in Nobokishore's case was not without its difficulties but the learned

(1) A.I.R. 1946 Lah. 180 at 188. ( 2) I.L.R. 1°' Cal. 1102.

Mummareddi Nagi Reddi

and Others

Pitti Durairaja

Naidu and Others

Mukherjea J.

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Mummartddi

Nagi Rtddi

and Others

Pitti Durairaja

Naidu and Othns

Mtikherjea J.

Judges felt it had to be travelled that titles might be quieted.

But it is settled that there should be no extension of this Bengal doctrine" : Per Jenkins C. J. in Debiprosad v. Gola Bhagat (' ).

The present case obviously does not come within the purview of the doctrine laid down in Nobokishore

v. Harinath (2) which presupposes an alienation of the entire property in favour of a stranger to which the immediate reversioner was a consenting party.

Here it cannot be said that the entire interest was transfer' red to the son-in-law of the widow with the consent of her daughter.

The interest transferred was a fraction of the interest held by widow and strictly speakmg, there was no consent expressed by the daughter.

She was a sort of a co-assignee with her husband.

Mr. Aiyar contends that her consent was implied by her accepting the deed and joining in several sub- .sequent transactions on the basis of the same, and once this consent is established we can impor_t the fiction of surrender in her favour of the entire estate, and if that fiction could be invoked it would be only .a logical extension of the principle in N obokishore' s case to hold that a part transfer in favour of a stranger could also be validated on the theory of surrender.

We are unable to a<; cept this chain of reasoning as sound. As stated above, it would be most improper to extend the doctrine in N obokishore' s case which is not itself based on sound legal principles to what Mr. Aiyar calls, its logical consequence.

We cannot invoke the fiction of surrender in a case like this when the renunciation, if any, was of a part of the estate; and the attempt to validate a part alienation by the widow in favour of a stranger on the basis of the doctrine of surrender, simply because the reversioner has impliedly assented to it, is m our opinion, absolutely unwarranted.

It remains to notice a few decisions of the Calcutta and Bombay High Courts upon which Mr. Rajah Aiyar relies in support of his contention.

The case of Abhay

( 1) I.L.R. 40 Cal. 721 at 751. ( 2) I.L.R. 10 Cal. 1102.

Padha v. Ramkinkar(1), decided by a Division Bench of the Calcutta High Court, seems to be very similar in its facts to the present case, and pn"ma f acie it is in favour of the appellants. There a Hindu widow executed a nadabi patra or deed of release in favour of her husband's brother who was the nearest reversioner and three sons of a predeceased brother of her husband.

After the death of the widow the husband's brother instituted a suit for recovery of possession of the e'ntire property denying the rights of his nephews under the deed executed by the widow.

The suit was dismissed by both the courts below and this decision was affirmed in second appeal by the High Court.

The point was definitely raised before the High Court that the transaction could not be upheld on the footing of surrender as it was partly a surrender in favour of the next heir and partly an alienation in favour of certain remoter heirs.

This point was disposed of by Cumming J., who delivered the judgment, in the following manner :-

"I do not think that there is much substance in this contention. It is a question more of form than of substance. If the widow had surrendered the whole estate to the reversioner and the reversioner had at the same moment made a transfer of his estate to his nephews nothing could be said against the transaction, and this is what in effect has been done by the present document."

We do not know what the contents of the document in the case actually were, nor whether the husband's brother joined in the execution of the document.

Be that what it may, we canot for the reasons already discussed accept the view that a transfer made by a widow of her entire estate in favour of the nearest reversioner and an outsider jointly would operate as a surrender of the whole estate to the immediate reversioner and a transfer of a half share in it to the stranger.

This, of course, is subject to any rule of estoppel that may on proper materials be urged against the presumptive reversioner.

This is precisely the view that has

(1) A.I.R. 1926 Cal. 228.

Mummaretldi

Nagi Ret!t!i

anti Others

Pitti Durairaja

Naidu and Others.

Mukherjea J.

Mummartddi Nagi Rtddi and Others

Pitti Durairaja

Naidu and Others

Mukh,,.jea J.

been taken by the Allahabad High Court, in Mt. ]agrani v. Gaya(') and, in our opinion, this is the correct view to take.

The learned counsel for the appelants has in this connection referred us to two decided authorities of the Bombay High Court. The first is the case of Y ashwanta

v. A11tu('), w_here the widow together with her daughter who was the immediate heir excuted a deed of gift of the entire estate in favour of a stranger who was the husband of a predeceased daughter.

It was held that the transaction was valid on the basis of the doctrine of surrender: It is quite clear that this case comes directly within the purview of the principle enunciated in Nobobkishore's case, and there are two material facts which distinguish it from the case before us. In tlie first place, the reversioner joined with the widow in making the transfer in favour of a stranger and secondly, the transfer to the stranger was of the entire estate. There can be no difficulty in construing such a transaction as a valid act of surrender.

Of the other case which is to be found reported in Bala Dhondi v. Baya(3) the facts are somewhat similar to those in the present case, but the actual decision does not assist the appellants.

There a Hindu widow made a gift of the entire estate of her husband in favour of her daughter and her husband jointly, the daughter being tlie next heir at that time. The lower appellate court held that the gift was a valid surrender, but this decision was reversed by the High Court on appeal and it was held that the transaction was not valid in law inasmuch as it was not a gift in favour of the daughter alone but in favour of her son-in-law as well who was to take jointly with the daughter. It was further held that tlie daughter being a minor, was not competent to consent to the gift in favour of her husband. It is true that there is no question of minority in the present case, but the decision certainly is no authority on the point which we are called upon to

(') A.LR. 1933 All. 856.

{2) I.L.R. 58 Born. 521.

(8) l.L.R. 60 .Born. 211.

decide.

In our opinion, the view taken by the High Court in regard to the legal effect pf the document (Exhibit P-6) is the correct one and the first contention raised by Mr. Rajah Aiyar should therefore fail.

w G'. now come to the other point which relates to the question of mesne profits.

Mr. Aiyar's main contention under this head is that as an alienation by the' widow is not void but only voidable and the reversioner can avoid it by choosing to institute a suit, the possession of the alienee could not be held to be unlawful before that date and consequently no mesne profits should have been allowed for the period prior to the institution of the suit. The other branch of his contention is that in respect of property No. 1 of the schedule there was only a conditional decree passed against defendants. 2 to 3 and so long as the condition is not fulfilled by the plaintiffs depositing the required amount in court, the. plaintiffs' right to take possession does not accrue and consequently no mesne profits can be allowed to them. In support of this contention, reliance has been placed upon the decision of the Allahabad High Court in Banwarilal v. Mahesh(1).

As regards the first branch of the contention, it may be pointed out that prior to the decision of the Judicial Committee in Bijoya Gopal v. Krishna Mahishi(2) there was some misconception regarding the legal position of an alienee of a property from a Hindu widow vis a vis the reversioner, upon the death of the widow. It was held in an earlier case by the Judicial Committee that an alienation by the widow was not void but voidable and the reversioner might elect to assent to it and treat it as valid.

It did not absolutely come to an end at the death of the widow.

On the strength of this decision, it was held by the Calcutta High Court in Bijoya Gopal v. Krishna Mahishi( 2)

(supra) that it was necessary for a reversioner to have the alien_ation set aside before he could recover. possession of the widow's property and the period of limitation for a suit to set aside such an alienation was that

(1) ~.L.~. 41 All. 63, 2--4 s. C. India/66

(2) I.L.R. 34 Cal.,329.

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Nagl Reddi

and Others

Pitti Durairaja

Naidu and Others.

Mulr:herjea J.

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and Others

Pitti Durairaja

Naidi, and Others.

Mukherjea ],

prescribed by article 91 of the Indian Limitation Act.

On appeal to the Privy Council, it was P.Ointed out by their Lordships that this view was based on a misconception and they explained in what sense a transfer by a Hindu widow was not void but voidable.

It was said that the alienation by a Hindu widow does not become ipso facto void as soon as the widow dies; for, if that were so it could not have been ratified by the reversioners at all.

The alienation, though not absolutely void, is prima facie voidable at the election of the reversionary heir.

He may, if he thinks fit, affirm it or he may at his pleasure treat it as a nullity without the intervention of any court and he can show his election to do the latter by commencing an action to recover possession of the property. There is in fact nothing for the court either to set aside or cancel as a condition precedent to the right of action of the reversionary heir. A reversioner's suit for recovery of possession of the property alienated by a 'widow, it is well settled, is governed by article 141 of the Limitation Act, and as it is not necessary that the transfer should be set aside before any decree for possession is made, all that is necessary is that the reversioner should file a suit for possession within 12 years from the death of the widow and a decree passed in such a suit must be on the basis that the poosession of the transferee was unlawful ever since the widow died.

This being the position, we think that it is quite proper to allow the reversioner mesne profits against the alienee from the date of the widow's death. There is no rule of law that no mesne profits can be allowed in a case where the alienation cannot be described as absolutely void.

The decisions of the Judicial Committee in Bhagwat Dayal v. Debi Dayal(') and Satgur Prasad v. Harnarain Singh( 2 ) may be cited as illustrations where mesne profits were allowed in transactions which were only voidable. We think further that there is a difference between the alienee of a widow and the transferee of joint property from a Mitakshara father.

A son of a Mitakshara father is bound to set aside an

(1) L.R. 35 I.A. 48.

(•) L.R. 59 I.A. 147.

alienation made by the father within the period laid down in Article 125 of the Indian Limitation Act and it is only on the alienation being set aside that he is entitled to recover possession of the property. The High Court, in our opinion, was perfectly right in holding that the decision in Banwarilal v. Mahesh(1) which related to a suit instituted by a son against an :alienee of the father under the Mitakshara law does not apply to the facts of the present case.

It is true that as regards defendants 2 and 3 the decree is a conditional decree and the plaintiff cannot recover possession unless he pays a certain amount of money to the extent of which the widow's estate has been held to be benefitted, but the High Court has very properly allowed interest upon this amount to the alienee while making the latter liable for the mesne profits.

The result is that, in our opinion, the decision of the High Court cannot be assailed on either of these two points and the appeal therefore fails and is dismissed with cost5.

Appeal dismissed.

Agent for the appellants : M. S. K. Aiyangar.

Agent for the respondents : M. S. K. Sastri.

MANOHARLAL~THESTATE

{SHJU HARJLAL KANIA C. J., SAIYm FAZAL Au,

MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR and VIVIAN BosE JJ.]

Puniab Trade Employees Act, 1940, ss. 2-A (i) and (i), 7 (1), 16, -fh?fkuper without employees - Sale by son on close day- L1abil1ty of shop'fr..eeper-'-Scope of s. 2-A (i) and (i).

Section 7 sub-s. (1) of the Punjab Trade Employees Act, 1940. as aended in 1943, provided that "save as otherwise . provided by this Act, every shop shall . remain closed on a dose day." Subscctiort (2) (i) stated that "The choice of a close day. shall rest with the owner or octupier of a shop ...... and shall be intimated

Mummartddi

Nagi Rtddi and Others

Pitti Durairaja

Naidu and Others.

Mukherjea J.

May 23.

PITTI DURAIRAJA NAIDU AND OTHERS

MEHR CHAND MAHAJAN

MuKHERJEA

VIVIAN BosE JJ.

L. R. 51 I.A. 200

L.R. 35 I.A. 48

L.R. 59 I.A. 147

Gentle C.J.

Satyanarayana Rao

Mummareddi

Nagi Reddi

Pitti Durairaja

Naidu

Mukherjea

K. Rajah Aiyar

R. Ganapathi Iyer

B. Somayya

M. Krishna Rao

Subordinate Judge of Nellore

Durairaja Plff

Venkata Narasamma

Vcnkatadri-Rajakantamma

Rajavathi Plif

Balakrishna Plff

Krishnababulu Plff

Narayanappa

Narayanappa

Venkata Narasamma

Narasamma

Pitti Rangayya

Venkatadri

Chanchamma

22nd February, 1894

Narasamm

Chaachamma

Narasamma

July 9, 1922

October 26, 1929

Mummareddi Nagi Reddi

Pitti Durairaja Naidu

Mukhajea

Pitti Darairaja

Naidu

High Court of Madras

C.

the Code of Civil Procedure

Rajah Aiyar

Mummareddi

Nagi Reddi

Mummartddi Nagi Reddi

Pitti Durairaja Naidu

Narasimha Naidu

Nagi Reddi

Mukhtrjta

L. R. 61 I.A. 200

L.R. 41 I.A. 72

Aiyar

Calcutta High Court

Mummartrldi

Mummareddi Nagi Reddi

Nobokishore

L.R. 46 I.A. 72

Mahajan

Richard Garth

Lawrence Jenkins

Mummartddi

Nagi Rtddi

Mtikherjea

Jenkins

N obokishore

Calcutta and Bombay High Courts

Cumming

Mummaretldi

Mukherjea

Mummartddi Nagi Rtddi

Allahabad High Court

Bombay High Court

Nobobkishore

Mummarttldi

Nagl Reddi

herjea

article 91

Limitation Act

article 141

Limitation Act

L.R. 35 I.A. 48

L.R. 59 I.A. 147

Article 125

Limitation Act

M. S. K. Aiyangar

M. S. K. Sastri

SHJU HARJLAL KANIA

SAIYm FAZAL Au

CHANDRASEKHARA AIYAR

Puniab Trade Employees Act, 1940

ss. 2

s. 2

Section 7

Punjab Trade Employees Act, 1940

Mummartddi

Nagi Rtddi


S.C.R.

SUPREME COURT REPORTS 671

alienation made by the father within the period laid down in Article 125 of the Indian Limitation Act and it is only on the alienation being set aside that he is entitled to recover possession of the property. The High Court, in our opinion, was perfectly right in holding that the decision in Banwarilal v. Mahesh(1) which related to a suit instituted by a son against an :alienee of the father under the Mitakshara law does not apply to the facts of the present case.

It is true that as regards defendants 2 and 3 the decree is a conditional decree and the plaintiff cannot recover possession unless he pays a certain amount of money to the extent of which the widow's estate has been held to be benefitted, but the High Court has very properly allowed interest upon this amount to the alienee while making the latter liable for the mesne profits.

The result is that, in our opinion, the decision of the High Court cannot be assailed on either of these two points and the appeal therefore fails and is dismissed with cost5.

Appeal dismissed.

Agent for the appellants : M. S. K. Aiyangar.

Agent for the respondents : M. S. K. Sastri.

MANOHARLAL~THESTATE

{SHJU HARJLAL KANIA C. J., SAIYm FAZAL Au,

MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR and VIVIAN BosE JJ.]

Puniab Trade Employees Act, 1940, ss. 2-A (i) and (i), 7 (1), 16, -fh?fkuper without employees - Sale by son on close day- L1abil1ty of shop'fr..eeper-'-Scope of s. 2-A (i) and (i).

Section 7 sub-s. (1) of the Punjab Trade Employees Act, 1940. as aended in 1943, provided that "save as otherwise . provided by this Act, every shop shall . remain closed on a dose day." Subscctiort (2) (i) stated that "The choice of a close day. shall rest with the owner or octupier of a shop ...... and shall be intimated

Mummartddi

Nagi Rtddi and Others

Pitti Durairaja

Naidu and Others.

Mukherjea J.

May 23.

The Stale.

Bose j.

to the prescribed authority." Clauses (i) and (j) of s. 2-A provided that nothing in the Act. shall apply to persons employed in a managerial capacity and the members of the family of the employer.

The appellant owned a shop, and on a close day the appellant's son sold an article from the shop, and the appellant was convicted under s. 16 of tht Act.

It was contended on his behalf that s. 7 of the Act was ultra 11ire1 as it did not fall under any. of the items in either the Provincial or the Concurrent Legislat:ve List of the Government of India Act, 1935, and that in any event as he did not employ any labour and was also the manager of the shop he cannot be convicted .in view of the provisions of clauses (i) and (j) of s. 2-A of the Act.

Held,. hy the Full Court-(i) that the Provincial Government could under item No. 27 in List II regulate the hours, place, date and manner of sale of any commodity and s. 7 of the Act was not ultra vires; the matter could, also be brought under item 27 in list III "welfare of labour; conditions of labour;"

(ii) clause (j) of s. 2-A did not protect the appellant because the conviction was not for the sale by the son but for the appeltant having kept the shop open on a close day;

(iii) the appellant was not entitled to be exempted under cL (i) of s. 2-A even though he was himself the manager of the shop, because bis capacity and liability as an owner must be kept distinct. from that of a manager for the purposes of the Ila.

Cl\IMINAL

APPELLATE JtWSD1cnoN: Criminal Appeal No. 11 of 1950.

Appeal under Art. 134 ( l) ( c) of the COnstitucion of India against the Judgment and Order dated the 10th Apri1, 1950, of the High Court of Judicature at Simla in Criminal Revision No. 449 of 1949. The facts of the case appear in the judgment.

Kundan Lal Arora for the appellant.

S. N. Chopra for the respondent.

1951. May 23. The Judgment of the Coon wa delivered by

BosE J.-This is a criminal appeal against .a conviction under section 16 of the Punjab 'frade Employees Act, 1940, as amended in 1943, read with section 7(1).

The appellant is a shopkeeper who owns and runs a shop in the Cantonment Area oe Ferozepore. He has no "employees" within the meaning of the Act but is assisted by his son in running the shop. The: shop is

divided into two sections.

In one, articles of haberdashery are sold; in the other, articles of stationery.

Section 7(1) of the Act as amended i:equires that- "Save as otherwise proided by tbiJ Act, every shop ........ shall remain closed on a dose' 4ay."

Sub-section (2) (i) states that-

"The choice of a close day shall rest with the owner or occupier of a shop .... and shall be intimated to the prescribed authority within etc."

The appellant made the following choice. He elected to close the haberdashery section on Mondays and the stationery section on . Saturdays and gave the necessary intimation to the prescribed authority to that effect.

Ori Monday, the 17th of May, 1948, the appellant's son sold a tin of boot polish to a customer from the haberdashery section of the shop.

The appellant was present in person at the time of the sale. Monday was a close day for the haberdashery section and so the appellant was prosecuted under section 16 read with section 7.

The trying Magistrate held that in selling the article of haberdashery on a_ close day and in not observing Monday as a close day the appellant had infringed the provisions of section 7(1) of the Act. He accordingly convicted him and imposed a fine of Rs. 20.

A revision application to the High Court failed.

The High Court held that as the appellant had failed to keep his shop closed one day in the week, his conviction was proper.

A certificate for leave to appeal to this Court, on the ground that a substantial question of law relating to the Government of India Act, 1935, was involved, was granted and that is how we come to be seized of the matter.

The learned counsel for the appellant contended that section 7 of the Act is ultra vires in that it does not fall under any of the items in either the Provincial or the Concurrent Legislative Lists in the Government of India Acr, 1935. In our opinion, the matter can come either under item No. 27 in List II or item No. 27 in List IIJ.

Bose J.

195!

Bose].

Item No. 27 in List II covers "trade and commerce within the Province." In our opinion, a Provincial Government could, under that entry, regulate the hours, place, date and manner of sale of any particular commodity or commodities.

It could, ihr example, state that the sale of explosives or other dangerous substances should only be in selected areas, at specified times or on specified days when extra precautions for the general safety of the public and those directly concerned could be arranged for.

That would appear to be obvious.

In the same way, it could, if it so pleased, say that there shall be no sales on a particular day, say a Sunday or a Friday, or on days of religious festivals and so forth .. Instead of doing that, it has chosen to regulate the internal trade of the Province in this manner which is only one of the various ways in which it could have acted.

The matter can also be brought under item 27 in List III : "welfare of labour; conditions of labour." The impugned section is a general one and applies to all kinds of shops; that is to say, to those in which labour is employed as well as to those which are run by the owners and their families.

The Act in which the section occurs is directed at regulating the hours of employment of persons who are employed in the business of shops or commercial establishments.

Therefore, in so far as section 7 covers establishments where labour is employed, it is undoubtedly intra vires.

But it was argued that the section can have no application to shops which an owner runs with or without the assistance of his family. Reliance for this was placed on section 2-A (i) and (j) which is as follows :

"2-A. Nothing in this Act shall apply to- • • • •

(i) persons employed in a lll; U1agerial capacity .... and

(j) the members of the family of the employer."

It was argued that the salo was by the wn. He is not affected by the Act Therefore, he was entitled to sell and he could not sell unless the shop was kept

open to enable him to do so.

SO also as regards the appellant, the owner, who was there in a managerial capacity. In our opinion, this is fallacious because the conviction here is not for the sale but for keeping the shop open on a close day.

Section 2-A {j) does not give the son a right to keep the shop open or, for that matter, a right to sell. All it says is that he, being a member of the family, shall not be affected by the provisions of the Act. Section 7 (1), on the other hand, is directed against the owner of the shop, not against his family.

It compels the owner to keep his shop closed one day in a week.

It was then contended that if a person employed in a managerial capacity cannot be affected by the Act, then the appellant who was there in that capacity cannot be compelled to close , the shop under section 7.

This is also fallacious.

It happens in _the present case that the owner and the manager are the same but the Act obviously makes provision for a class of case in . which they are different. The owner is obliged to close the shop one day in a week, though the manager of the shop can work without, for example, having the twenty-four consecutive hours of rest every week which section 7-A enjoins. The appellant's capacity as manager will have to be separated from his character as owner for this purpose. Section 2-A(i) does not control section 7 (1).

Lastly, it was argued that the scheme of the Act makes it plain that it is for ameliorating the conditions of labour employed in shops. It carinot therefore. apply to shops in which no labour is employed, particularly when the family of. the "employer" is expressly excluded from the purview of the Act. For this reason alo, it cannot fall under item 27 in List III. We are of opinion that such .a narrow interpretation cannot be placed upon the entry.

The legislature may have felt it necessary, in order to reduce the possibilities of evasion to a minimum, to encroach upon the liberties of those who would not otherwise have been affected.

That we think it had power to do. Further, to require a shopkeeper, who employs one or two men, to close and

1951 .

The Stat,,

Qose J.

The State.

Bose J.

May 24

permfo his rival, who employs perhaps a dozen mctnbers of his family, to rctnain open, dearly places the former at a grave commercial disadvantage. To permit such a distinction might well engender discontent and in the end react upon the relations between employer and employed.

All these are matters of policy into which we cannot enter but which serv.e to justify a wide and liberal interpretation of words and phrases in these entires.

The appeal fails and is dismissed.

Appeal dismissed.

Agent for the appellant : Vidya Sagar.

Agent for the;_ respondent : P. A. Mehta.

LOGENDRA NATH JHA & OTHERS

SHRI POLAILAL BISW AS.

[SHRI liARILAL KANIA c. J., PATANJALI SASTRI,

S. R. DAS and VIVIAN BosE JJ.]

Criminal Procedure Code (V of 1898), s. 439 (4)-R<vision against acquittal-High Court's powers-Rer•ersal of findings of facts- /mpropriety of.

Though sub-s. (I) of s. 439 of the Criminal Procedure Code authorises the High Court to exercise in its discretion any of the powers conferred on a court of appeal by s. 423, yet sub-s. ( 4) specifically excludes the power to "convert a finding of acquittal into one of conviction." This docs not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court can in the absence of any error on a point of law rcappraisc the evidence and reverse the findings of facts on which the acquittal was based, provided only it stops short of finding the accused guilty and passing sentence on him, by ordering a retrial.

CRIMINAL

APPELLATE

JURISDICTION: Criminal Appeal No. 17 of 1951.

Appeal against a Judgment and Order dated 22nd January, 1951, of the High Court of Judicature at Patna (Imam J.) in Criminal Revision No. 1533 of 1950.

Article 125

Limitation Act

M. S. K. Aiyangar

Sastri.

MANOHARLAL

SHJU HARJLAL KANIA

MEHR CHAND MAHAJAN

CHANDRASEKHARA AIYAR

VIVIAN BosE JJ.

Puniab Trade Employees Act, 1940

ss. 2

s. 2

Section 7

Punjab Trade Employees Act, 1940

Nagi Rtddi

Pitti Durairaja

Naidu

Mukherjea

Bose

s. 2

s. 16

s. 7

s. 2

s. 7

s. 2

s. 2

Art. 134

Kundan Lal Arora

S. N. Chopra

section 16

Employees Act, 1940

section 7(1)

Ferozepore

Section 7(1)

17th of May, 1948

section 16

section 7

section 7(1)

Government of India Act, 1935

section 7

section 7

section 2

Section 2

Section 7

section 7

section 7

Section 2

section 7

Vidya Sagar

P. A. Mehta

LOGENDRA NATH JHA

POLAILAL BISW

PATANJALI SASTRI

S. R. DAS

Criminal Procedure Code

s. 439

s. 439

s. 423

22nd January, 1951

High Court of Judicature at Patna


ManoharLal

The State.

Bose J.

May 24

SUPREME COURT REPORTS [1951]

permfo his rival, who employs perhaps a dozen mctnbers of his family, to rctnain open, dearly places the former at a grave commercial disadvantage. To permit such a distinction might well engender discontent and in the end react upon the relations between employer and employed.

All these are matters of policy into which we cannot enter but which serv.e to justify a wide and liberal interpretation of words and phrases in these entires.

The appeal fails and is dismissed.

Appeal dismissed.

Agent for the appellant : Vidya Sagar.

Agent for the;_ respondent : P. A. Mehta.

LOGENDRA NATH JHA & OTHERS

SHRI POLAILAL BISW AS.

[SHRI liARILAL KANIA c. J., PATANJALI SASTRI,

S. R. DAS and VIVIAN BosE JJ.]

Criminal Procedure Code (V of 1898), s. 439 (4)-R<vision against acquittal-High Court's powers-Rer•ersal of findings of facts- /mpropriety of.

Though sub-s. (I) of s. 439 of the Criminal Procedure Code authorises the High Court to exercise in its discretion any of the powers conferred on a court of appeal by s. 423, yet sub-s. ( 4) specifically excludes the power to "convert a finding of acquittal into one of conviction." This docs not mean that in dealing with a revision petition by a private party against an order of acquittal, the High Court can in the absence of any error on a point of law rcappraisc the evidence and reverse the findings of facts on which the acquittal was based, provided only it stops short of finding the accused guilty and passing sentence on him, by ordering a retrial.

CRIMINAL

APPELLATE

JURISDICTION: Criminal Appeal No. 17 of 1951.

Appeal against a Judgment and Order dated 22nd January, 1951, of the High Court of Judicature at Patna (Imam J.) in Criminal Revision No. 1533 of 1950.

S.C.R.

SUPREME COl}RT REPORTS 677

S. P. Sinha (P. S. Safeer and K. N. Aggarwal, with him) for the appellants.

The respondent did not appear.

1951. May 24. The Judgment of the Court was delivered by

PATANJALI SAsTRI J.-This is an appeal by special leave from an order of the High Court of Judicature at Patna setting aside an order of acquittal of the appellants by the Sessions Judge, Purnea, and directing their retrial.

The appellants were prosecuted for alleged offences under sections 147, 148, 323, 324, 326, 302 and 302/149 of the Indian Penal Code at the instance of one Polai Lal Biswas who lodged a complaint against _them before the police. The prosecution case was that, while the complainant was harvesting the paddy crop on, his field at about 10 a.m. on 29th November, 1949, a mob of about fifty persons came on to the field armed with ballams, lathis apd other weapons and that the first appellant Logendranath Jha, who was leading the mob, demanded a settlement of all outstanding disputes with the complainant and said he would not allow the paddy to be removed unless the disputes were settled.

An altercation followed a.s a result of which Logendra ordered an assault by his men.

Then Logendra and one of his men, Harihar, gave ballam blows to one of the labourers, Kangali, who fell down and died on the spot.

Information was given to the police who investigated the case and submitted the charge-sheet.

The committing Magistrate found that a prima f acie case was made out and committed the appellants to the Court of Sessions for trial.

The appellants pleaded not guilty alleging inter alia, that Mohendar and Debender, the brothers of Logendra (appellants 2 and 3) were not present in the village of Dandkhora with which they had no concern, as all the lands in that village had been allotted to Logendra at a previous partition, that Logendra himself was not in the village at the time of the occurrence but arrived

Logmdranath

Shri Polailal Biswas.

Patanjali Sastri J.

1~51

logendranath Jha and Others

Shri Polailal Biswas.

Patanjali Sastri ].

678 SUPREME COURT lEPORT5 [1951)

soon after and was dragged tQ th!! place at the instance of his enemies in the village and was pled under arrest by the Assistant Sub-Inspector of Police w!Jo had arrived there previously.

It was also .alleged that there were two factions in the village, one of which was led by one Harimohan, a relation of the complainant, and the other by Logcndra and there had been numerous revenue and criminal proceedings and long-standing enemity between the families of these leaders as a result of which this false case was foisted upon the appellants.

The learned Sessions Judge examined the evidence in great detail . and found that the existence of factions as alleged by the appellants was true. He found, however, that the appellants' plea of alibi was not satisfactorily made out, "but the truth of the prosecution'', he proceeded to observe, "cannot be judged by the falsehood of the defence nor can the prosecution derive its strength from the weakness of the defence.

Prosecution must stand on its own legs and must prove the story told by it at the very first stage. The manner of occurrence alleged by the prosecution must be established beyond doubt before the accused persons can be convicted".

Approaching the case in this manner and seeing that the basis of the prosecution case was that Polai had batai settlement of the disputed land and had raised the paddy crop which he was harvesting when the occurrence took place, the learned Sessions Judge examined the evidence of the prosecution witnesses who belonged to the opposite faction critically and found that the story of the prosecution was not acceptable. Polai, who was alleged to have taken the land on batai settlement from his own maternal grandmother Parasmani who brought him. up from his childhood, was only 19 years old and unmarried and was still living with his grandmother.

He did not claim to be a bataidar of any other person. "In these circumstances", said the learned Judgci, "it does not appear to me to be probable that Polai would have been allowed to maintain himself by running adhi cultivation of his mamu's land in the lifetime of

his nani who has brought him up from his infancy like her own child. Nor does it appeal to me that the unmarried boy Polai would have undertaken upon himself the task of running batai cultivation of the lands of his mamu where he has been living since his childhood without any trouble, more particularly in view of the heavy expenses of cultivation brought out by the evidence of Tirthanand (P.W. 14)'.'. He, therefore, disbelieved the whole story that Polai had taken the lands of his grandmother or his uncles as bataidar for cultivation and that he was engaged in harvesting the paddy crop on the lands at the -time of the occurrence. This false story, in his opinion, "vitally affected the prosecution case regarding the alleged manner of the occurrence".

He also found a number of discrepancies and contradictions in the evidence of the prosecution witnesses, which, in his view, tended to show that the prosecution was guilty of concealment of the real facts. "In view of such concealment of real facts," the learned Judge concluded, "it does not appear to me to be possible to apportion liability and to decide which of the two parties comll)enced the fight and which acted in self-defence.

Such being the position, it is not possible at all to hold either party responsible for what took place.

In such a view of the matter coupled with the fact that the manner of occurrence alleged by the prosecution has not been established to be true beyond doubt, I think that the accused persons cannot be safely convicted of any of the offences for which they have been charged." The learned Judge accordingly acquitted the appellants of all the charges. framed against them.

Against that order the complainant Polai preferred a revision petition to the High Court under section 439 of the Criminal Procedure Code, The learned Judge who heard the petition reviewed the evidence at some length and came to the conclusion that the judgment of the learned Sessions Judge could not be allowed to stand as the acquittal of the . appellants was "perverse".

In his opinion, "the entire judgment displays a lack

19,?l

Logllldranalk

]ha andQthm

Shri Polailal

Biswqs,"

Patanjali Saslrt J-

Logendranath

Shri Polailal

Biswas.

Patanjali SastrJ J.

of true perspective in a case of this kind. The Sessions Judge had completely misdirected himself in looking to the minor discrepancies in the case and ignoring the essential matters so far as the. case is concerned," and there was no justifiable ground for rejecting the prosecution evidence regarding the cultivation and harvesting by Polai. And he concludedwith the warning "I would, however, make it perfectly clear tl1at when the case is re-tried, which I am now going to order, the Judge proceeding with the trial will not be in the least influenced by any expression of opinion which I may have given in this Judgment."

On behalf of the appellants Mr. Sinha raised two contentions.

In the first place, he submitted that having regard to section 417 of the Criminal Procedure Code which provides for an appeal to the High Court from an order of acquittal only at the instance of the Government, a revision petition under section 439 at the instance of a private party was incompetent, and, secondly, that sub-section ( 4) of section 439 clearly showed that the High Court exceeded its powers of revision in the present case in upsetting the findings of fact of the trial Judge. We think it is unnecessary to express any opinion on the first contention of Mr .. Sinha especially as the respondent is unrepresented, as we are of opinion that his second and alternative contention must prevail.

It will be seen from the judgment summarised above that the learned Judge in the High Court re-appraised the evidence in the case and disagreed with the Sessions Judge's findings of fact on the ground that they were perverse and displayed a lack of true perspective.

He went further and, by way of "expressing in very dear terms as to how perverse the judgment of the court below is", he indicated that the discrepancies in the prosecution evidence and the circumstances of the case which led the Sessions Judge to discredit the prosecution story afforded no justifiable ground for the conclusion that the prosecution failed to establish their case.

We are of opinion that the learned Judge in the High Court did not properly appreciate the

scope of inquiry in revision against an order of acquittal.

Though sub-section (I) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by section 423, sub-section (4) specifically excludes the power to "convert a finding of acquittal into one of conviction".

This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could in the absence of any error on a point of law re-appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding .the accused guilty and passing sentence on him.

By merely characterising the judgment of the trial Cou~ as "perverse" and "lacking in perspective", the Hig Court cannot reverse pure findings of fact based on th trial Court's appreciation of the evidence in the case!

That is what the learned Judge in the court. below bas done, but could not, in our. opinion, properly do on an application in revision filed by a private party against acquittal. No doubt, the learned Judge formally complied with sub-section (4) by directing only a retrial of the appellants without convicting them, and warned that the court retrying the case should not be influenced by any expression of opinion contained in his judgment.

But there can be little doubt that he loaded the dice against the appellants, and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general.

We are of opinion that the learned Judge in the High Court exceeded his powers of revision in dealing with the case in the manner he did, and we set aside his order for retrial of the appellants and restore the order of acquittal passed by the Sessions Judge.

Appeal allowed ..

Agent for the appellant: Kundan Lal Mehta.

Log•ndrall4lh

Jha and Olhm

Shri Polailal

Biswas. ·

Patatifali Sastri J.

Bose J.

Vidya Sagar

P. A. Mehta

LOGENDRA NATH JHA & OTHERS

POLAILAL BISW AS

SHRI liARILAL KANIA

PATANJALI SASTRI

S. R. DAS

Criminal Procedure Code

s. 439

s. 439

s. 423

S. P. Sinha

P. S. Safeer

K. N. Aggarwal

PATANJALI SAsTRI

High Court of Judicature at Patna

Sessions Judge, Purnea

Indian Penal Code

Polai Lal Biswas

29th November, 1949

Logendranath Jha

Logendra

Harihar

Kangali

Mohendar

Debender

Logendra

Dandkhora

Polailal Biswas

Patanjali Sastri

logendranath Jha

Patanjali Sastri

Harimohan

Logcndra

Polai

Parasmani

Polai

Tirthanand

Polai

section 439

Polailal

Biswqs

Patanjali Saslrt

Polailal

Biswas

Patanjali SastrJ

Sinha

section 417

section 439

section 439

section 439

section 423

Kundan Lal Mehta

Jha

Olhm

Patatifali Sastri