t ...

S.C.R.

SUPREME COURT REPORTS 793

The appellant's last contention that the munafa

(rent) should not be calculated on the principle laid down in Radhacharan v. Maharaja Ranjit Singh (1) but should have been assessed on a fair share of the profits of the land has no substance because the claim was not made in the grounds of appeal to the Privy Council and was not even mentioned in the additional grounds of appeal. It was for the first time made before us at the hearing and we see no valid grounds for entertaining it at this late stage. Moreover, it seems to us that the claim has no substance in the absence of any .evidence about the proportion the original patni rent bore to the r.evenue and cesses.

For the reasons given above all these appeals fail except to the extent that the decree of the High Court is modified in that the amounts decreed by way of mesne profits in the various suits will bear interest at the rate of four per cent. instead of six per cent. The parties will bear their own costs in all these appeals.

Appeals dismissed.

Agent for the appellant in Civil Appeals No. 62 to 74 :lJ.ld 75 to 92 : P. K. Bose.

'W Agent for respondent No. 1 in Civil Appeals Nos. 68

to 74 : Ganpat Rai.

Agent for the respondents Nos. 1 to 3 m Civil Appeals Nos. 75 to 92 : Sukumar Ghose.

MUSAMMAT PHOOL KUER

ti.

MUSAMMAT PEM KUER AND ANOTHE.lt.

PANDIT MADAN MOHAN

MUSAMMAT PEM KUER AND ANOTHER .

[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR.

and VMAN BosE JJ.] Hindu law-Widow-Surrender 'to next reversioner and stranger-Validity-Compromise by widow-When binding O# reversioner.

(1) (1918) 27 C.L.J. 532.

Raja Bhupendra Narain Singha

Bahadur

Maharaj Bahadur Singh

and Others.

Mahajan /.

April 24

Musammat Phool Kuer

Musammat Pem Kuer and Another.

Mahaian f.

A relinquishment by a Hindu widow of her estate in favour of the next reversioner and a stranger in equal moieties is not a valid surrender under Hindu law.

A valid surrender cannot be made in favour of anybody except the next heir of the husband.

Mummareddi Nagireddi v. Pitti Durairaia Naidu [19511 (S.C.R. 655) followed.

It is competent to a Hindu widow to enter into a compromise in the course of the suit bona fide in the interest of the estate and not for her personal advantage and a decree passed on such a compromise will be binding on the reversioner. The question whether a compromise is a bona fide settlement of a disputed right between the parties depends on tho substance of the transaction and in order that it may bind the estate it should be a prudent and reasonable act. [On the facts their Lordships held, agreeing with the High Court, that the compromise in the present case was neither prudent nor reasonable so far as it affected the interests of the estate and of the ultimate reversioners and that it was not, therefore, binding on the reversioners.]

Ramsumaran Prasad v. Shyam Kumari ( 49

I. A. 342), Mohendra Nath Biswas v. Shamsunnessa Khatun (21 C.L.f. 157) and lmrit Kunwar v. Roop Narain Singh (6 C.L.R. 76) followed.

Mata Prasad v. Nageshar Sahai (52 I.A. 393) distinguished.

C1VIL

APPELLATE Juruso1cnoN : Civil Appeals Nos. 29 and 30 of 1951.

Appeals from the judgment and decree dated 26th October, 1943, of the High Court of Judicature at Allahabad (Verma and Yorke JJ.) in First Appeal No. 48 of 1938 arising out of the

' f •

judgment and decree dated 6th August, 1937, of the - Court of the Additional Civil Judge at Agra in Suit No. 30 of 1936.

M. C. Setalvad and Kirpa Ram (K. B. Asthana, with them) for the appellant in Civil Appeal No. 29 of 1951.

K. N. Agarwal for the appellant in Civil Appeal • No. 30 of 1951.

C. K. Daphtary (G. C. Mathur, with him) for the respondents in both the appeals.

1952. April 24. The Judgment of the' Court wa~ delivered by MAHAJAN J.

} • • ·,._ ..

,, ""' \ \-

' I ~

MAHAJAN J.--The dispute in this appeal concerns the zemindari and house properties last owned by Shaha Chiranji Lal who died at a young age on the 14th May, 1913, leaving him surviving a widow, Mst. Khem Kuer, and his mother Mst. Mohan Kuer, besides a number of collaterals, indicated in the pedigree table below :-

Shah Pirthi Raj

I I Mst. Tulsa Kuer=Shah Lal Chand=Mst. Mohan Kuer .1 Hira Lal Shah Jal Kisen I Mst. Ram Kuer =Kherpal

I I- I I Ram Chand Lachman Kishen Lal

Prasad =Mst. Umri

I Ganga Prasad I J amna Prasad

'1 Manohar Lal

I I Shah Jwala Prasad

(1) Khem Kuer

(2) Phool Kuer

I Dwarka Prasad

Shah Sj Kishen

I Shah Madho Lal i----1

Sudarshan Lal Mad- I Mst. Prem Kuer i sudan Lal

Shah Chiranji Lal =Lekh Raj =Mst. Khem Kuer I

Lachrni Jarain

~ ;:,.. lI °:""'

l~~ ~~ ::i... ::! 0 .... ~:;.::::!:0:~~1t0.

S,~~

~~VI ... "' ~ N

----"--~ _.. ·---- .• I

~ 8 c:: §

Musammal Ph.ool Kuer

Musammat

Pem Kuer tmd Another.

' Mahaian /.

.796

SUPREME COURT.REPORTS [1952]

Mst. Khem Kuer, the young widow of Shah Chiranji Lal, was murdered on the 28th August, 1919, and Mst. Mohan Kuer, the mother, died on the 5th December, 1932. Mst. Prem Kuer, the respondent in the appeal, claiming herself to be the heir to Shah Chiranji Lal as his sister, brought the suit giving rise to this appeal in the court of the civil judge, Agra, against amongst others, Mst. Phool Kuer, the present appellant, for recovery of possession of the properties of Shah Chiranji Lal and mesne profits.

Mst. Prem Kuer joined her half-sister Mst. Ram Kuer and their sons as plaintiffs along with herself.

In the array of defendants were impleaded Mst. Phool Kuer and Mst. Khem Kuer, widows of Shah Jwala Prasad and Shah Madho Lal and his sons and a host of others. as transferees of the properties.

The main defence to the suit was that Shah Jwala Prasad and Shah Madho Lal were recognized to be the owners and heirs to the entire estate of Shah Chiranji Lal by Khem Kuer and Mohan Kuer in a family settlement arrived at between the parties in suit No. 120 of 1915, that by virtue of this family settlement the estate of the deceased was vested in them subject to the life estates of the two women and that the plaintiffs who came to be recognized as reversioners by the Hindu Law of Inheritance (Amendment) Act, II of 1929, were not entitled to claim it. It was further pleaded tha~ on the death of Khem Kuer in 1919, Mohan Kuer surrendered the estate in favour of Jwala Prasad and Madho Lal and they took possession of it as owners and the plaintiffs who subsequently became statutory heirs in 1919 could not be allowed to question the surrender and reopen the succession which could not remain in abeyance.

The learned additional civil judge who tried the suit, dismissed it holding that the compromise of 1915 was a bona fide settlement of a bona fide dispute and was binding as a family settlement being for the benefit of the estate, that Mohan Kuer surrendered the estate validly in favour of Jwala Prasad and Madho

. ..[·

Lal and they entered into possession of it after the death of Khem Kuer. Some of the transferees who had been impleaded as defendants compromised the suit with the plaintiffs and that part of the suit was decided according to the terms thereof between those parties.

Mst.

Prem Kuer preferred an appeal to the High Court of Judicature at Allahabad against the decree dismissing her suit. The High Court by its judgment dated the 26th October, 1943, allowed the appeal, reversed the findings of the learned additional civil judge on the above issues and decreed the plaintiffs' suit with costs. Some of the transferee-defendants compromised with the plaintiffs-appellant m the High Court and the appeal was decided in terms thereof in their favour.

Two main points which are in controversy in this appeal and require consideration, are:-

1. Whether the compromise in suit No. 120 of 1915 amounts to a family settlement and binds the plaintiff-respondent, and,

2. Whether the surrender by Mst.

Mohan Kuer was a valid surrender under Hindu law.

In order to appreciate the respective contentions of the parties, it is: necessary to set out shortly in chronological order the history of the events which has resulted in this controversy.

As already stated, Shah Chiranji Lal died on the 14th May, 1913, leaving considerable movable and immovable property. At the time of his death, his widow Khem Kuer was about eleven years old and his mother Mohan Kuer was about 53 years old.

The two revers10ners, Shah Jwala Prasad and Shah Madho Lal, made an application for mutation of names of the estate in their favour claiming it on the basis of a will alleged to have been made by Shah Chiranji Lal on the 13th May, 1913, a day before his death. On the 10th of September, 1913, an application was made by Mohan Kuer for herself and as guardian of Khem Kuer , challenging the genuineness of the will . and claiming

Musammat Phool Kuer

.v.

Musammat Pem Kuer and Another.

Mahajan /.

Musammat Phool Kuer

Musammat

Pem Kuer and Anothet'.

Mahaian J.

that the estate of the late Shah Chiran ji Lal should' be mutated in their names.

Notice of this application was given to the two reversioners but they thought it prudent not to appear and to contest the contentions raised by the two ladies, with the result that the inheritance of the late Chiranjf Lal was mutated in the name of the widow as sole heir under the guardianship of Mohan Kuer by an order dated the 28th October, 1913. The reversioners. had also made applications in pending suits for getting themselves impleaded as legal representatives.

Mohan Kuer applied for the removal of their names and for substitution of the name of the widow and of herself in those cases.

Pending decision of these matters, on the 11th May, 1915, suit No. 120 of 1915 was filed by Jwala Prasad and Madho Lal on the basis of the alleged will of the 13th May, 1913. On the same day an application was made for the appointment of a receiver and' an interim order appointing a receiver was passed by the court. On the 18th May, 1915, Mohan Kuer for herself and as guardian of the minor widow made an application praying for the discharge of the receiver.

By an order dated the 23rd September, 1915, the receiver was discharged and it was held by the civil judge that the plaintiffs had no prima faci~ case and that the will propounded by them was a susp1c10us document. On the 18th December, 1915, suit No. 120' of 1915 was compromised between the parties. This compromise is in the following terms:-

"l. The plaintiffs relinquish their claim for possession over the estate of Shah Chiranji Lal.

2. The defendants shall have all those rights to the estate of Shah Chiranji Lal, which she had as a Hindu widow according to law. After the death of .the two Musammats, the plaintiffs in equal shares and, after them, their heirs, who might have the right of survivorship one after the other, shall be the owners of the estate of Shah Chiranji Lal.

3. The name of Mst. Mohan Kunwar defendant

ainst one half of the property in lieu of maintc:nance., shall continue.

-.......

' •.

4. Mst. Mohan Kunwar and Mst. Khem Kunwar shall have power to do anything they might choose with the entire income from the movable and immovable property, cash, ornaments, amount of decrees and documents, household goods and other movables, which they might have in their possession. The plaintiffs or anyone else shall have no power to interfere or to ask for rendition of accounts.

5. In case Mohan Kunwar defendant dies first, Mst. Khem Kunwar shall, as a Hindu widow, become the owner m possession of the entire property, of which Mst. Mohan Kuer might have been in possession in any way, subject to the provisions of condition No. 4. In case Mst. Khem Kuer defendant dies first, Mst. Mohan Kuer shall as a Hindu widow, become the owner in possession of the entire property of which Mst. Khem Kuer might have been in possession in any way, subject to the provisions of condition No. 4."

In accordance with the terms of this compromise suit No. 120 of 1915 was dismissed.

In the proceedings that were pending for substitution of names the court on the 22nd December, 1915, ordered that Khem Kuer and Mohan Kuer be impleaded as legal representatives of the late Shah Chiranji Lal.

On the 2nd September, 1918, Khem Kuer brought a suit against her mother-in-law Mohan Kuer for a declaration to the effect that she alone was the lawful heir of Chiranji Lal and was the owner of the property, mentioned in schedule A and that the defendant had no concern with i~. This suit was compromised between the parties on the 22nd April, 1919. Mohan Kuer agreed that Khem Kuer's suit be decreed.

Khem Kuer undertook to look after Mohan Kuer in every way and if she desired to live separately from her, she agreed to pay her a sum of Rs. 3000 per annum by way of maintenance .

Khem Kuer did not live long after her having become owner of the entire estate of her husband under the terms of this compromise. As stated already, she was murdered on the 28th August, 1919. The estate

Musammat Phool Kuer

Musammat

Pem Kuer and Another~

Mahajan /.

Musammat Phool Kuer

. v.

Musammat

Pcm Kuer . and Another.

Mahian /.

thus became vested in Mohan Kuer both according to Hindu law as well as in accordance with the terms of the compromise of the 18th December, 1915. It is alleged that either on the fourth or the thirteenth day after the death of Khem Kuer, Mohan Kuer when asked about the mutation of the estate, said that she had no concern with it and had relinquished it and had devoted herself to worship. On the 15th September, 1919, an application bearing the signature of Mohan Kuer . in Hindi was presented by her mukhtar Chaturbhuj in the court of the subordinate judge at Agra, praying that the sale certificate in suit No. 1919 (Shah /wala Prasad v. Rai Bahadur Shah Durga Prasad), be prepared in the names of Shah Jwala Prasad and

Shah Madho Lal, for they were the heirs in possession of the properties of Shah Chiranji Lal. This application (Exhibit N-31) contains the following recital:-

"Mst. Khem Kuer died on the 28th of August,

1919. I do not wan~ to take any proceedings in my own name. Shah Jwala Prasad and Shah Madho Lal are the subsequent heirs and it is in their names that all the mutation proceedings etc. are being taken in the revenue court. They have been made the heirs in possession of the entire property and an application has been filed in their names in this court for preparation of the sale certificate. This petitioner has got no objection to the preparation of the sale certificate in their names, for they are the heirs and are in possession of the property."

The sale certificate was prepared accordingly. On the 16th September, 1919, Jwala Prasad and Madho Lal applied for mutation in respect of the lands relating to mauza Samra in the court of the tahsildar of Etmadpur. In column 5 of this application (Exhibit A-14) it was alleged that they were entitled to mutation by right of inheritance. Similar applications were made in respect of other villages also. (Vide Exhibit 128 etc.). Mutations were entered 'in all the villages ori the basis that both of them were heirs in equal shares to the property of the deceased, though according to Hindu law, Shah Jwala Prasad alone was the

' ' •.

next heir. During the course of the mutation proceedings one Chintaman, general attorney of Shah Jwala Prasad was examined on the 11th October, 1919, and he stated that Mst. Khem Kuer died on the 28th August, 1919, that Shah Jwala Prasad and Shah Madho Lal were her heirs in equal shares, that Mohan Kuer was the mother-in-law of the deceased and she did not want her name to be recorded and had made relinquishment in favour of Shah Madho Lal and Shah Jwala Prasad in the civil court on the 15th September,

1919. Chaturbhuj, general attorney of Mohan Kuer was examined in the same proceedings on the 27th October, 1919, and he stated that Mohan Kuer did not want her name to be recorded in place of the name of the deceased, that she had no objection to the entry of the names of Shah Jwala Prasad and Shah Madho Lal, that she had sent him for making that statement.

He admitted the relinquishment filed by Mohan Kuer in the civil court with respect to the property of Mst.

Khem Kuer but he was not able to state when that relinquishment had taken place.

The tahsildar after recording these statements ordered the mutation of names in favour of the two reversioners (Exhibit

M-2).

On the 22nd November, 1919, the two reversioners Shah Jwala Prasad and Shah Madho Lal, having entered into possession of the estate after the death of Khem Kuer made a gift of property of the value of about Rs. 50,000 in favour of the sisters of Shah Chiranji Lal by means of two deeds of gift. (Vide Exhibit M-16). These gift deeds contain the following recitals:-

"Shah Chiranji Lal deceased was the owner of Katariha estate in which besides other villages the villages specified below were also included, and as he had no issue after his death Mst. Khem Kuer became his heir as a Hindu widow of a joint family subject to Mitakshara school of law. On her death we the execut ...

ants who were entitled to become the absolute owners of the estate of Shah Chiranji Lal acording to Shas,. tras became the absolute owner of the entire property

Musammat Phool Kuer

Musammat Pem Kuer and A notlfer.

Mahajan /.

Musammat Phool Kuer

Musammat

Pem Kuer "'nd Another.

Mahajan J.

of Shah Chiranji Lal by inheriting the estate from rum. We obtained possession over everythlng and mutation of names also were effected in our favour from the revenue court in respect of all villages.

Shah Chiranji Lal deceased had two sisters Mst.

Ram Kuer and Mst. Prem Kuer and he had a desire during his lifetime to give them some property but owing to sudden death he could not himself fulfil hls intention during hls lifetime. We the executants accept this fact as desired by him. Besides this the mother of Shah Chiranji Lal also desires the same thlng and it is our duty to fulfil the same, and to give property to the Musammats aforesaid is considered to be a pious and good act from the religious point of view. It is our duty also to respect their wishes and fulfil the same, so that the people of our caste and family might not think that after the death of Shah Chiranji Lal his wishes remained unfulfilled. Hence for the reasons set forth above and keeping in view the honour of the family and pious nature of the act we the executants while in a sound state of body and mind ........... . make a gift of the following villages in favour of the donees."

The donees subsequently made a number of transfers of the property gifted to them and in every respect the gift deeds were acted upon. Jwala Prasad, the presumptive reversioner, died in the year 1930.

In suit No. 49 of 1928 (same as No. 89 of 1929) one Pandit Rikh Ram had obtained a decree against Shah Madho Lal and his sons and they appealed against it to the High Court and also applied for postponement .of the preparation of the final decree. Stay was ordered on the applicants furnishing security in the sum of Rs. 20,000 for future interest, costs, etc.

On the 26th May, 1930, in compliance with the order of the High Court a security bond was executed by Shah Madho Lal and his sons as first party and by Mst. Mohan Kuer -as second party, containing the following recitals:-

"After the death of Mst. Khem Kuer Mst. Mohan Xuer was to become the owner of the property with

' • _,_

,..

limited interests as a Hindu mother, but she relin- .quished her inheritance and did not agree to accept any property. By means of a private arrangement, i.e., a family arrnagement, it was decided as between Shah Jwala Prasad and Shah Madho Lal that they should be the owners of the property aforesaid in equal shares. Documents in that connection were registered. Thus Shah Madho Lal executant No. 1 is the exclusive owner of the property given below which is being pledged and hypothecated under this security bond. Executant No. 4, •the second party, has, after hearing and understanding the contents of this security bond, joined in token of the veracity of the facts noted above so that in future she might not be able to take objection to t and so that she might have no objection of any sort to the security bond." (Execu- . tant No. 4 was Mst. Mohan Kuer).

On the 30th June, 1930, an affidavit bearing the thumb impression of Mst. Mohan Kuer was filed in the same proceedings containing the following statements:-

"I solemnly affirm and say that after the death of Mst. Khem Kuer I did not agree to accept property nor was I the heir and that I relinquished the entire property in favour of Shah Jwala Prasad who became the owner of the entire property which was in possession of Khem Kuer."

The Subordinate Judge expressed the view that the bond could not be held to have been executed by Mohan Kuer, she being a pardanashin lady.

He .. declined to accept the deed as sufficient and valid J security. On the 9th July, 1930, the High Court of Judicature at Allahabad dismissed the application for stay of proceedings.

On the 15th July, 1931, Mohan Kuer instituted suit No. 24 of 1931 in the court of the subordinate judge of Mathura against the widows of Shah Jwala Prasad, Shah Madho Lal and his sons and a number of trans- ..,._..., ferees who had taken the property from these two reversioners. In para 8 of the plaint it was alleged

Musammat Phool Kuer

Musammat

Pem Kuer and Another.

Mahajan f.

Musammat Phool Kuer

Musammat

Pem Kuer and Another.

Mahaian /.

that the plaintiff was an old pardanashin woman, was simple and of week intellect and illiterate, that on account of the murder of Mst. Khem Kuer, she was very terror-stricken and Was full of sorrow and had no knowledge about her rights, that the third defendant and Jwala Prasad who wanted to get the property took undue advantage of the plaintiff's aforesaid condition and unlawfully entered into possession of the property left by Chiranji Lal deceased and caused the mutation of names in their favour. In para. 12 it was said that the defendants had got the , thumb impressions of the plaintiffs on certain documents without telling her the contents of those papers, simply by saying that a decree for a considerable amount had been passed against the property and it was going to be sold in auction and that a security bond must be furnished for saving the property. She prayed for a decree for possession of the property in dispute in her favour against the defendants. During the pendency of this suit Mohan Kuer died on the 5th December, and on her death an attempt was made by the present plaintiffs to get themselves impleaded as her legal representatives but on the 9th October 1934 it was held that the claim of Mst. Mohan Kuer was of a personal character and the suit therefore could not proceed owing to abatement. It was, however, noted that the legal representatives could file a separate suit, if so advised. It is in consequence of this order that the suit out of which this appeal arises was filed on the 30th April, 1936.

It was contended by the learned Attorney-General that the High Court on mere suspicions and unwarr:mted assumptions had found the main issues in the case aaginst the appellant and had erroneously held that the compromise in suit No. 120 of 1915 was not binding on the plaintiffs and that the surrender by Mohan Kuer was not valid surrender under Hindu law. After hearing the learned counsel at considerable length, we did not think it necessary to hear the respondent in reply, as in out opiru'on, the decision

of the High Court on both the points was right.

J {. •

'1. •

On the point of surrender, the learned Attorney- .General contended that the widow effaced herself and put both the reversioners in possession of the property half and half, and agreed to take Rs. 3,000 from them for her maintenance and that the fact of surrender was satisfactorily proved from the conduct of Mohan Kuer in allowing the estate to be mutated in the names" of the reversioners and in allowing them to take possession of it, also by the different statements made by her and from the other documentary and oral evidence led in the case. Emphasis was laid on the statements contained in the application (Exhibit M-31), on the statement of her mukhtar Chaturbhuj, and on the recitals of the security bond and the affidavit, Exhibit P-30.

Whether Mohan Kuer effaced herself and surrendered the property, or whether she merely abandoned it,. or whether she entered into an arrangement for the division of the estate between herself, tl1e two reversioners and the daughters and their sons, it is not possible to predicate with any amount of certainty.

No definite opinion can be offered on the question whether whatever she did, she did voluntarily after fully realizing the consequences of her act and whether as a pardanashin lady she had been properly advised on the matter or whether she merely acted on sentiment.

Considerable doubt is cast on the story of surrender set up by the defendants by the recitals in the two deeds of gift, dated 22nd November, 1919, extracted above. The donors did not base their title to the property either on the compromise of 1915 or on the surrender of Mohan Kuer of the year 1919 or on the will; on the other hand, they said that they had become owners of the property of Chiranji Lal by inheritance under Hindu law after the death of his widow. Both of them could not possibly iP.herit the property half and half under Hindu law. Moreover,. there is no clear or definite evidence of either the time when the arrangement was made or of the terms thereof. The evidence on these points is vague and 3-9 S, C, Indiaf71

Musammat Phool Kuer

Musammat

Pem Kuer and Anothe1

Mahajan J.

Musa1nmat Phool Kuer

Musa1nmat

Pem Kuer and A not her.

Mahajan /.

unsatisfactory. It is completely wanting as arrangement under which Mohan Kuer entitled to receive Rs. 3,000 from them.

[1952]

to the became

The conduct of Mohan Kuer and the various statements by her no doubt do indicate that she cut off her connection with the bulk of the estate of Chiranji Lal after the death of the widow and received a sum of Rs. 3,000 from the reversioners and 1t IS also clear that at her instance the reversioners gave property of the value of Rs. 50,000 to her daughters, but in the absence of any satisfactory evidence as to the precise nature of this arrangement it is not possible to conclude that the widow after fully realizing as to what she was doing and after proper advice effaced herself.

In this connection the allegations made by her in the suit of 1931 cannot be altogether ruled out from consideration.

Assuming however for the sake of argument that Mohan Kuer purported to relinquish her estate in favour of Jwala Prasad and Madho Lal, in our opinion, the relinquishment cannot in law operate as an extinction of her title in the estate. The principle underlying the doctrine of surrender is that it cannot possibly be made in favour of anybody except the next heir of the husband. Vesting of the estate in the next reversioner takes place under operation of law and it is not possible for the widow to say that she is withdrawing herself from the husband's estate in order that it may vest in somebody other than the next heir of the husband. It was held by this court in Mummareddi Nagi Reddi v.

Pitti Durairaja Naidu(') that so far as the next heir is concerned, there cannot be a surrender of the totality of the interest which the widow had, if she actually directs that a portion of it should be held or enjoyed by somebody else other than the husban.rl's heirs and that the position is not materially altered if the . surrender is made in favour of the next heir witlt

whom a stranger is associated and the widow purports to relinquish the estate in order that it may vest in

(t) [1951] S.C.R. 655.

both of them. Though in the written statements of the two sets of defendants different versions of the character of the arrangement were pleaded, the learned Attorney-General before us stated that the surrender by the widow was made both in favour of Jwala Prasad and Madho Lal in equal moieties. Madho Lal admittedly was not the next reversioner entitled to succeed to the estate.

Thus the surrender of the totality of the interest of the widow was not made in favour of the next heir.

That being so, it cannot operate as a valid surrender. If the surrender could be held a valid one, then obviously succession that had opened out in 1919 and vested in the next heirs could not be divested at the instance of the plaintiffs in the year 1932 on the death of Mohan Kuer, but in view of the invalidity of the surrender it has to be held that succession to Shah Chiranji Lal's estate opened in 1932 and the plaintiffs as next heirs were entitled to take it.

The next question for consideration is whether the compromise of 1915 entered into between Mohan Kuer as guardian of Khem Kuer, and the two reversioners who had claimed the estate on the basis of a will, was a bona fide family arrangement and thus binding on the ultimate reversioners, the plaintiffs.

It is well settled that when the estate of a deceased Hindu vests in a female heir, a decree fairly and properly obtained against her in regard to the estate is in the absence of fraud or collusion binding on the reversionary heir, but the decree against the female holder must have involved the decision of a question of title and not merely a question of the widow's possession during her life (vide Venayeck Anundrow

v. Luxumeebaee('). This principle of res iudicata is not limited to decrees in suits contested and it is competent to a widow to enter into a compromise in the course of a suit bona fide in the interest of the estate, and not for her personal advantage, and a decree passed on such compromise is binding upon the reversioner. The question whether the transaction

(I) (1861-1863) 9 M.I.A. 520.

Musammat Phool Kuer

Musammat

Pem Kuer and Another.

Mahajan/.

Musammat Phool Kuer v.

Musa1nmat

Pem Kuer and Another.

Mahajan J.

SUPREME COTJRT REPORTS r 195? 1

is a bona fide settlement of a disputed right between the parties depends on the substance of the transaction and in order that it may bind the estate it should be a prudent and reasonable act in the circumstances of the case. As observed by their Lordships of the Privy Council in Ramsumran Prasad v.

Shy am Kumari (1), the true doctrine is laid down in M ohendra Nath Biswas v. Shamsunnessa Khatun(2), decided in 1914, and it is that a compromise made bona fide for the benefit of the estate and not for the personal advantage of a limited owner will bind the reversioner quite as much as a decree against her after contest.

That being so, we proceed to inquire whether the compromise in the present case is one that can be supported on these principles. In agreement with the High Court we are of the opinion that it cannot be so supported. Mohan Kuer in entering into the compromise on behalf of the minor widow never applied her mind to the interests of the ultimate reversioners. She entered into it for her own personal benefit and for the personal benefit of the minor widow in complete indifference as to what was to happen to the estate after their respective deaths.

Under this compromise these two ladies got all the rights they had under Hindu law without sacrificing an iota of their property and then they agreed that after their death the plaintiffs in equal shares and after them their heirs shall be the owners of the estate of Chiranji Lal.

It did not matter in the least to the two ladies what was to happen to the estate after their deaths and they were quite willing to let this estate go to the plaintiffs in the suit though one of them was a remote reversioner. The compromise therefore was made in the interest of the actual parties to the suit in complete disregard of the interests of the ultimate reversioners. The widows undoubtedly acted with reasonableness and prudence so far as their personal interest was concerned but further than that they did not see. The claim of the two plaintiffs in

Suit No. 120 of 1916 was adverse to the interest of the ;,.

(1) (1922) 49 I.A. 342.

(2) (1915) 21 C.L.J. 157.

' I

reversion as they were claiming as legatees under the will. The widows while entering into the compromise safeguarded their personal rights only and thus in entering into it they only represented themselves and not the estate or the reversioners and surrendered nothing out of their rights, and it cannot be said that in the true sense of the term it was a bona fide settlement of disputed rights where each party gave up something of its own rights to the other. The plaintiffs got an admission from the widows in regard to the future succession of the estate that after their deaths they would succeed though they were not heirs in accordance with Hindu law. By this admission the widows lost nothing whatsoever.

Those who lost were the ultimate reversioners and their interest was not in the least either considered or safeguarded.

In these circumstances it seems to us that the compromise cannot be held to be a bona fide settlement or family arrangement of disputed rights and was entered into by Mohan Kuer for her personal advantage and of the advantage of Khem Kuer. The present case is analogous to the decision of the Privy Council in lmrit Konwur v. Roop Narain Singh(1). There in a dispute between a person claiming to be an adopted son of the previous owner and the widow and her daughters who would have title after her the widow gave up her daughters' rights in consideration of her receiving practically unimpaired what she could.

Their Lordships held that such a compromise could not stand, a:s indeed it was not a compromise at all.

The learned Attorney-General laid considerable emphasis on the decision of their Lordships of the Privy Council in Mata Prasad v. Nageshar Sahai(2 ). In that case the widow admitted the right of the reversioner under Act I of 1869 and agreed that succession will be governed by that Act.

The reversioner agreed to let her remain in possession and undertook that he would not alienate the property during that period. The widow in that case was not constituted a full owner under Hindu law and she did not get her full rights

(1) {1880) 6 C.L.R. 76.

(2) (1925) 52 I.A. 393.

Musammat Phool Kuer v.

Musammat Pem Kuer and Another.

Mahajan /.

Musammat Phool Kucr

Musdmmat

Pem Kuer and Another.

Mahajan /.

under the compromise but as a matter of concession was allowed to remain in possession by the reversioner and as a matt<r of fact she sacrificed her rights to a considerable extent and did not act for her personal benefit at all except to the limited extent mentioned

above. In the circumstances of that case it was held that the compromise was a bona fide family settlement of disputed claims and was binding on the reversioners.

In the present case the devolution of rhe property after the death of Chiranji Lal . was agreed to be in accordance with Hindu law and that being so, the further devolution of the property after t11eir death was no concern of the widows. That was a matter of law. The ultimate reversioners were stabbed in the back by the widow and such a compromise cannot be held to be binding on them. A large number of cases were cited before us in which compromises under different circumstances had been held to be binding on the reversioners. We consider that it is wholly unnecessary to examine those cases because the circumstances in which those compromises were made were quite different from the circumstances of the present caie. Considering all the materials which were placed before us, we hold in agreement with the High Court that the compromise in the present case was neither prudent nor reasonable so far as it affected the interest~ of the estate and that of the ultimate reversioners and that being so.. is not binding on the plaintiffs. For the reasons given above this appeal fails and is dismissed with costs.

Civil Appeal No. 30 of 1951

This is an appeal by one of the transferees and arises out .of the same suit out of which arises appeal No. 29 of 1951. On the 13th June, 1928, Shah Madho Lal and his son Shah Madhusudan Lal executed a sale deed (Exhibit M-13) in favour of the appellant for the sum of Rs. 21,000. The transferee while adopting the defence taken by Madho Lal and by the heirs of Jwala Prasad, pleaded that he was protected by the provi• sions of . section 41 of the Transfer of Property Act.

' -

The High Court held that in cases where a person who has allowed :mother to occupy the position of an ostensible owner has a limited estate, the rule of section 41 applies only during the lifetime of the limited owner and is not available to protect transferees against the claim of the reversioners.

A number of ; rnthorities were cited m support of this proposition.

The learned counsel for the appellant was unable to displace this propositi.mr... It JS quite clear that the plea of section 41 of the Transfer of Property Act could only be raised against Mohan Kuer or her legal representatives but is not available against the plaintiff, Mohan Kuer having acquired a limited life estate.

This contention is therefore rejected.

The learned counsel then contended that the plaintiff Pem Kuer had relinquished her rights m favour of her sons in 1933 and she had no locus 1tandi to maintain the suit or to appeal against the decision of the trial judge as the title to the estate had vested in her sons. The plaintiffs had alleged in para. 13 of the plaint that the relinquishment was inoperative and void. The defendants did not dispute that allegation and it is not open to them at this stage to take up the plea which they could h2:1e taken in the trial court or in tl1e appellate court. Even in the grounds of appeal to this court the point was not taken. If the point was taken at the proper stage the plaintiffs might well have proved that the relinquishment was no longer operative or they might have amended the plaint and put it in proper form.

The learned counsel adopted the arguments of the learned Attorney-General in the other appeal and for the reasons given therein . these points are decided against him. This appeal therefore also fails and JS dismissed with costs .

Appeals dismissed.

Agent for the appellant in Civil Appeal No. 29 of .- 1951 : S. S. Shukla.

Agent for the appellant in Civil Appeal No. 30 of ....__..,... 1951 : P. C. Agarwal.

Agent for the respondents in both : Rajinder Narain.

Musammat Phool Kuer v.

Musammat Pem Kuer Rnd Another.

Mahajan /.

Ganpat Rai

Sukumar Ghose

MUSAMMAT PHOOL KUER

MUSAMMAT PEM KUER AND ANOTHER

MEHR CHAND MAHAJAN

CHANDRASEKHARA AIYAR

Raja Bhupendra Narain Singha

Maharaj Bahadur Singh

Musammat Phool Kuer

Musammat Pem Kuer

High Court of Judicature at Allahabad

Verma

Yorke

M. C. Setalvad

Kirpa Ram

K. B. Asthana

K. N. Agarwal

C. K. Daphtary

G. C. Mathur

MAHAJAN

Shaha Chiranji Lal

Manohar Lal

Phool Kuer

Sudarshan Lal

Lachrni Jarain

Khem Kuer

Prem Kuer

Shah Chiranji Lal

Phool Kuer

Prem Kuer

Ram Kuer

Khem Kuer

Shah Jwala Prasad

Shah Madho Lal

Mohan Kuer

Jwala Prasad

Madho Lal

Madho

Lal

Prem Kuer

26th October, 1943

Shah

Chiranji Lal

14th May, 1913

13th May, 1913

10th of September, 1913

Musammat Phool Kuer

Mahaian

Shah Chiran ji Lal

Chiranjf Lal

28th October, 1913

11th May, 1915

18th May, 1915

23rd September, 1915

18th December, 1915

Mohan Kunwar

Khem Kunwar

Khem Kunwar

Khem Kuer

22nd December, 1915

2nd September, 1918

22nd April, 1919

Musammat Phool Kuer

Pcm Kuer

Mahian

15th September, 1919

Agra

28th of August,

1919

16th September, 1919

Etmadpur

Chintaman

11th October, 1919

28th August, 1919

15th September,

1919

Chaturbhuj

27th October, 1919

22nd November, 1919

Mahajan

Shah Chiranji Lal

Pandit Rikh Ram

26th May, 1930

Mohan Xuer

Mohan Xuer was to become the owner of the property with

' • ,

,..

limited interests as a Hindu mother, but she relin- .quished her inheritance and did not agree to accept any property.

30th June, 1930

9th July, 1930

15th July, 1931

Mathura

Pem Kuer

Mahajan

Mahaian

9th October 1934

30th April, 1936

mukhtar Chaturbhuj

13th June, 1928

Shah Madhusudan Lal

section 41

Transfer of Property Act

section 41

section 41

Transfer of Property Act

Pem Kuer

S. S. Shukla

P. C. Agarwal

Rajinder Narain


April 30.

SUPREME COURT REPORTS

BHAGW AN SINGH

fl.

THE STATE OF PUNJAB

[SAIYID FAzL Au and VIVIAN BoSE JJ.J

(1952]

Evidence Act (1 of 1872), secs. 145, 157-Criminal Procedure Code, 1898, secs. 208, 288, 537, 540-Criminal trial-Examination of Witness not examined before Comm:'tting Magistrate-Ugality-'- State1nents before Committing Magistrate-Admissibility-Statement not denied-Use as corroborative evidence-Certificate of magistrate that deposition was read over-Presumption of correctness-Practice of examining Committing Magistrate, impropriety of.

The Sessions Court has power to examine witnesses who were not examined before the Committing Magistrate because 0£ -sec. 540, Criminal Procedure Code, and if the witness is treated .as a prosecution witness and examined by the prosecuting coun- :Sel instead of by the court, that at best would be an irregularity .curable by sec. 537 of the Code.

The proper time to object to :Such a procedure would be at the trial itself.

Shel' Bahadur v. The Crown (I.LR. 15 Lah. 331) and Queen Empress v. G. W. Hayfield (I.L.R. 14 All. 212) distinguished S. S. Jhabwala v. Emperor (A.LR. 1933 All. 690) and Mussamat Niamat v. The c,.own. (I.L.R. 17 All. 176) approved. Emperor v.

Channing Amold (B Cr. L.j. 877) referred to.

Resort to sec. 145 of the Evidence Act is necessary only if a witness denies that he made the former statement.

In that e'vent it would be necessary to prove that he did and if the former statement was r.educcd to \Vriting, then sec, 145 requires that his attentian must be drawn to those parts which are to be

sed for contradiction.

But that position does not arise when the witness admits the former statement.

In such a case all that is necessary is to look to the former statement of which ne furthor proof is necessary because of the admission that it was made.

The former statement cannot be used as substantive evidence unless sec. 288, Criminal Procedure Codo, is called in ai& but , even without sec. 288 the court would be entitled to sar, basing on the evidence-in-chief which is the substantive CVl dence, that what the witness said to the police or the Committing Magistrate, is the true version, not because those statements form substantive evidence, but because they tally with the evidence-in-chief which is substantive.

If a . former statement can be brought in under sec. 157 of the Evidence Act, it can be transmuted into substantive evidence by the application of sec. 288 of the Criminal Procedure Code.

Tara Singh v. The State [1951] S.C.R. 729 distinguished.

If the certificate of the Committing Magistrate endorsed on 1952 "the deposition sheet states that the deposition was read out to -- the witness and the witness admitted it to be correct the court is BhagtUan Singh bound to accept this as correct under sec. 80 of the Evidence

V'.

Act until it is proved to be untrue.

The State of It is not necessary nor desirable to examine Magistrate to prove the truth of his certificate.

Kashmera Singh v. The State of Madhya (S.C.R.) 526 followed.

th~ Committing

Pradesh [1952]

Even if it be true that the deposition was not read over, that would only amount to a curable irregularity and in the absence of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually :said, the objection cannot be sustained .

CRIMINAL

APPELLATE

JURISDICTION ; Criminal Appeal No. 12 of 1952.

Appeal by special leave from the judgment and order dated 4th June, 1951, of the High Court of judicature of Punjab at Simla (Bhandari and Soni JJ.) in Criminal Appeal No. 109 of 1951 arising out of Judgment and order dated 19th March 1951 of the Court of the Additional Sessions Judge, Femzepore, in Sessions Trial No. 18 of 1951.

T. R. Bhasin, for the appellant.

Goprd Singh, for the respondent.

1952. April 30. The Judgment of the Court was -Oelivered by

BosE J.-This is a simple case at great length on behalf of number of technical objections :trial taken .

though it was the appellant to the validity

argued and a of the

The appellant Bhagwan Singh has been convicted of the murder of one Buggar Singh and sentenced to death. He has also been convicted under section 19(f) of the Indian Arms: Act but we are not concerned with that here.

The prosecution story is that the appellant bore a grudge against the deceased because the deceased had fired at the appellant's brother some six or seven years before the present occurrence and was sent to jail for

Punjab.

Bose/.

Bhagwan Singh v.

The State of

Pr1njab.

Bose].

it. When he came out of jail the police thought it prudent to take proceedings against both sides under section 107 of the Code of Criminal Procedure. This resulted in the appellant's two brothers and his cousms being bound down, as also the deceased.

This, it i~ said, constituted the motive for the present cnme.

On the date of the occurrence, the 7th of September 1950, the prosecution state that the appellant was

sitting at the shop of Jit Singh, P.W. 2, when the deceased came there about 12-15 p.m. and borrowed Rs. 5 from Jit Singh who lent him the money and entered the transaction in his account book.

When the deceased left the shop he was followed by the appellant who shot him at point blank range with a pistol only 4 or 5 karams from the shop.

This attracted the attention of a number of bystanders who immediately chased the appellant and apprehended him after a short run of about 30 karams. He was still carrying t.he pistol. It was taken away from him by Jagir Singh Patwari, P.W. 4.

The appellant was immediately taken to the local .police pbilt about 100 karams distant and the shopkeeper Jit Singh, P.W. 2, made the first information report at 12-37 p.m. within 15 minutes of the occurrence.

The motive is proved by Bhag Singh, P.W. 7, who has_ been believed af!d that part of the case was not challenged before us.

The occurrence was witnessed by a large number of persons of whom the prosecution examined only five. Two of them turned hostile in the Sessions Court and one gave evidence which has been regarded by the High Court as neutral.

The remaining two, Balbir Singh (P.W. 5) and Jaswant Singh (P.W. 6) have been believed. The only questions are (1) whether the conviction can be rested on their testimony and (2) whether certain irregularities in the trial vitiate it.

No attack was made on the testimony of Balbir Singh,. P.W. 5, except that the two eye-witnesses who

-- -I

""'

resiled in the Sessions Court contradict him. But it was argued that the evidence of Jaswant Singh P.W .. 6, is vitiated because he was not examined by the Committing Magistrate. It was said that that makes his evidlence in the Sessions Court inadmissible.

This raises a quesion which is largely academic in this case because the reason Jaswant Singh,

P.W. 6, was not examined by the Committing Magistrate is that the witness had gone away and was not available and it would have been a needless, and indeed unjustifiable, holding up of the proceedings to wait till he could be found and summoned.

It is evident that the Sessions . Court has power to examine witnesses who were not examined before the Committing Magistrate because of section 540 of the Criminal Procedure Code, and if the witness is treated as a prosecution witness and examined by the prosecuting counsel instead of by the Co.urt itself that at best would be an irregularity curable by section 537. The proper time to object to such a procedure would be at the trial itself, and as the appellant was represented in the Sessions Court by two counsel it is too late to object to such a venial irregularity in this Court.

The learned counsel for the appellant took us elaborately through the provisions of Chapter XVIII of the Criminal Prncedure Cod(l and stressed in particular section 208(1) but we need not enter into this because section 540 is a complete answer in this particular case. None 9f the cases cited goes so far as to say that no witness who was not produced in the committal proceedings can be examined at the trial and we would be unable to agree if they did.

The decision most in favour of the appellant's contention is Sher Bahadur v. The Crown(1) but that does no more than consider such an omission as a curable defect. Abdul Qadir J. said at pages 338 and 342 that it was conceded before them that section 540 could be called in aid in such a case, and at page 331}

the learned Judge dealt with the question of prejudice (I) (1934) I.L.R. 15 Lah. 331.

Bhagwan Singk

The State of

Punjab.

Bose/.

iBhagwan Singh

. v.

The State of Puniab.

Bose f.

and concluded at page 344 with the remark that the question is one of fact in each case and that in his opinion there was prejudice in that particular case .

The other learned Judge took the same view at pages 347 and 348 and said :-

"The Court can, of course, always use its discretion and allow the production of further evidence."

It is to be observed that the objection in that case was raised at a very early stage and before the sessions .trial had commenced ; also that the prosecution wished to examine no less than eight material witnesses (out of a total of sixteen) which they had deliberately withheld in the committal proceedings.

We make no remarks about the correctness of the observations which travel beyond the question of prejudice because that is unnecessary here. It is sufficient to say that the learned Judges conceded the power under section 540 and decided the case on the "question of prejudice.

The question raised in Queen-Empress v.

G. W.

Hayfield(') does not arise here because the Sessions Court did not refuse to examine Jaswant Singh, P. W. 6, and so the question whether the prosecution could demand his examination as a matter of right never arose. The fact remains that they were permitted to do so and the defence raised no objection.

The decision of the Allahabad High Court in S. H.

Jhabwala v. Emperor(') and the Full Bench of the Lahore High Court in Mussammat Niamat v. The Crown (3) arc against the learned counsel's contention.

The decision of the Full Bench of the Lower Burma Chief Court in Emperor v. Channing Arnold(4 ) is. not in point because the Committing Magistrate there refused to examine witnesses which the prosecution wanted, and indeed insisted that he should examine, and what was worse he prevented the accused from completing the . cross-examination of tjie only prosecution witness which the Committing Magistrate thought fit to examine.

Whatever else may be thought of

(1) (1892) !.L.R. 14 All. 212.

(3) (1936) l.L.R. 17 Lah. 176.

(2) A.LR. 1933 All. 690. ( 4) (1912) 13 Cr. L.J. 877.

... •

1952 section 208 it is evident that the accused has the right to cross-examine, at any rate, . those of the witnesses who are examined by the Committing Magistrate on behalf of the prosecution and section 347 cannot be used as a cloak for a hasty committal before such cross-examination is complete.

Bhagwan Singlr

In our opinion, the cases cited do not justify the extreme position taken up by the learned counsel for the appellant and as section 540 is a complete answer in this case all we need consider is the question of prejudice.

We do not hold that the court is bound to examine a witness called under section 540 itself as a court witness and that it can never entrust the examination to the prosecuting counsel because even if that be the proper procedure no prejudice has been occasioned iin thi:s particular' case.

The :irregularity here on this score, if indeed it is one; is so trivial as to be innocuous.

A more important question is, was the appellant taken by surprise and was prejudice occasioned because of that? We do not think so because Jaswant Singh was mentioned in the first information report, recorded within 15 minutes of the occurrence, as one of the eye-witnesses and he was again mentioned as an eye-witness in the calendar oif the committal proceedings.

The appellant was presumably supplied with the witnesses' statement to the police, or at any rate he had the right to demand a copy under section 162 and if he did not do so, it was presumably because neither he nor his two learned counsel wanted it. The first information report is a full one and sets out all the essentials of the prosecution case; therefore, with all that information in the possession of the appellant and his counsel it could be impossible for him to contend that he did n:ot know what this witness was to prove.

Had the witness travelled beyond the statements embodied in t11e first information report, objection to the use of anything not contained in it would have been understandable, though to be effective such

The State of

Punjab.

Bose /.

!Bhagwan Singh v.

The State of

Punjab.

Bose /.

objection would ordinarily have to be raised at the trial, but as the witness does not do that, there can be no objection on the score of prejudice. It 1s to be observed that the Explanation to section 537 requires a court to take into consideration the fact whether any objection on the score of irregularity could have been raised at an earlier stage.

Now the High Court bases its decision on the evidence of these eye-witnesses and on the fact that the . appellant was apprehended on the spot within a minute or two of the murder with the pistol still in .his possession, and had the learned Judges stopped there, there would have been no foundation for the very elaborate network of technicalities upon which the learned counsel for the appellant embarked. But Bhandari J. (Soni J. concurring) after saying that

"After a careful consideration of all the facts and circumstances of the case I entertain no doubt in my mind that Balbir Singh and Jaswant Singh P. Ws. have told nothing but the truth"

went on to say-

"and that Jit Singh and Jagir Singh who made correct statements before the police and before the Committing Magistrate have given false evidence in the trial Court with the object of savmg the appellant from the gallows."

It was argued that the learned Judges have here used the evidence of these witnesses before the Committing Magistrate as substantive evidence despite the fact that it was legally inadmissible for that purpose because the formalities prescribed by section 288 were not observed.

Reliance was placed upon Tara Singh v. The State(').

Even if that be so, it would make no difference because the evidence of 'Balbir Singh and Jaswant Singh, whom the learned Judges primarily believe, 1s sufficient to afford a basis for the conviction and the mere fact that extraneous matter not necessary for the conviction was also called in aid would not affect

(1) [1951] S.C.R. 729.

the result. Bun as a matter of fact the foundation for this attacki is based upon incorrect assumptions.

We will deal with Jit Singh, P. W. 2, first. He sup- .Ported the prosecution case in his examination-inchief but resiled when cross-examined.

He was therefore treated as hostile and the learned Public Prosecutor was permitted to cross-examme him. In cross-examination the witness's statement in the Committal Court was read out to him and he was asked whether he had made such a statement and he said: "Yes." When that statement is read it is found to tilllY with his evidence in chief and with the depositions of Balbir Singh and Jaswant Singh and with the first information report. Now it was not necessary to use the former statement as substantive evidence at all and the fact that the learned High Court Judges placed this on a par with the statements to the police, including of course the first information report, indicates that they were not using the former statements as substantive evidence but merely as corroboration of what was said in chief.

The distinction is a subtle

~:me and can perhaps be best explained in the followmg way.

A witness is called and he says in chief, "I saw the accused shoot

X".

In cross-examination he resiles and says "I did not see it at all." He is then asked "but didn't you tell A, B & C on the spot that you had. seen it?" He replies "yes, I did." We have, of set purpose, chosen as an il1utration a statement which was not reduced to writing and which was not made either to the police or to a magistrate.

Now, the former statement could not be used as substantjve evidence. It would only be used as corroboration of the evidence in chief under section 157 of the Evidence Act or to shake the witness's credit or test his veracity under section 146. Section 145 is not called into play at all in such a case. Resort to section 145 would only be necessary if the witness denies that 11e made the former statement. In that event, it would be necessary to prove that he did, and If the

Bhag111an Singh v.

The State of Ptinjab.

Bose/.

Bhagwan Singh ...

The State of

Puniab.

Bou /.

former state1iient was reduced to writing, thefl section 145 requires that his attention must be drawn to those parts which are to be used for contradiction .

But that position does not arise when the witness admits the former statement. In such a case all that is necesj_ary is to look to the former statement of which no further proof is necessary because of the admission that it was made.

Of course, that statement cannot be used as substantive . evidence unless section 288 of the Criminal Procedure Code is called in aid. But even without section 288 a Court would be entitled to say in such a case, basing on the evidence in chief, which is sub~. stantivf: evidence, that 111rhat the 'vitness said to tl1e police, or to the Committing Magistrate, is the true version, not because those statements .form substantive .

evidenc.~ but because they tally with the evidence in chief which is substantive.

This is onliy one of the many ways in which a witness's testimony can be sifted and examined. Corroboration is as useful to test the truth of a story as any other method. In such a case, what the Court really does, though it may happen to put the matter the ot11er way round, is to say that in its opinion the substantive evidence given in chief is true because it is corroborated by an earlier statement and for that reason, namely because the version in 'chief is the true one the contradictory version given in cross-examination is wrong, not because of the contradiction embodied in the former statement but because of what was said in chief, a version which it is now safe to believe on account of the corroboration afforded by the earlier statement.

It is true the earlier statement could also have been used for contradicting the version given in crossexamination and in that event, if it . is in writing, the . limitations imposed by section 145 of the Evidence Act would have to be observed, but the prosecution is not bound to do that. It has a choice. It can, if it so chooses, build up the version given in chief in any Way it pleases and, having done that, use the version in chief to destroy the version in cross-examination.

But in the case before us there is no need to resort to these subtleties because here the depositions were brought on record and could be used as substantive evidence even if the formalities prescribed by section 145 of the Evidence Act were not observed for the very simple reason that there was no need in this cause to resort to section 145. As we have said, the prosecution had a choice here because of the two conflicting versions given in chief and in crossexamination. It was entitled to use the former statement either to contradict what was said in crossexamination or to corroborate what was said in chief. In either event, section 288 of the Criminal Procedure Code could be used, to make the former statement substantive evidence because what the sec~ tion says is "subject to the provisions of the Indian Evidence Act," and not subject to any particular section in it. Section 157 is as much a provision of the Indian Evidence Act as section 145 and if the former statement can be brought in under section 157 it can be transmuted into substantive evidence by the application of section 288.

Tara Singh v. The State(1) is to be distinguished because there, there were no two versions in the course of the same testimony. The witness in question was hostile from the start in the Sessions Court and the whole purpose of resorting to section 288 was to contradict what he said there and no question of corroboration arose. The prosecution had no choice there, as i~ was here, of using the former statement either to contradict or to corroborate.

We turn next to Jagir Singh, P. W. 4. In hi~ cas~ there was no choice. He was hostile from the start and in his1 case our observations in the ruling just referred to apply in full. But on an examination of his evidence we find that the formalities prescribed by section 145 were complied with.

His cross-examination, in contrast to Jit Singh' s where such a procedure was not necessary, shows that every circumstance intended to be. used as contradiction was. put to him point by point and passage by passage._ That was

(1) [1951] S.C.R. 729 at 743. 4-9 S.C. India/71

I Bhagwan Singh

v. rhe State of Puniab.

Bose/.

lihogwan Singh

-·· The State of

Pnnjab.

BOGe ].

conceded:, but it was argued that this was done without drawing the witness's attention to the parts of the writing which were to be used for the purposes of contradiction.

We are by no means satisfied that that is the case because at least one of the passages is reproduced in inverted commas and so must have been read out from the statement. But that apart. Immediately after the witness had been questioned about each separate fact point by point, the whole statement was read out to him and he admitted that he had made it in the Committing Court. Now this procedure may be open to objection when the previous statement is a long one and only one or two small passages in it are used for contradiction-that may, in a given case, confuse a witness and not be a fair method of affording him an opportunity to explain-but in the present case the previous statement is a short one and the witness was questioned about every material passage in it point by point.

Accordingly, the procedure adopted here was in substantial compliance with what section 145 requires.

There can be no hard and fast rule.

All that is required is that the witness must be treated fairly arid be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner. We are satisfied that that was done here. The matter is one of substance and not of mere form.

Jit Singh, l>.W. 2, said that the statement made by him in the commital proceedings was not read over to him and so did Jagir Singh, P.W. 4.

It was argued that in the absence of an enquiry that must be accepted as true, and if true, the evidence becomes inadmissible.

Now the certificate of the Committing Magistrate endorsed on the deposition sheet states that the depcr sition V/a5 read out to the witness nd that the witness admitted it to be cbriett. The Coutt is bound to accept this as correct under section 80 of the Indian Evidence Act until it is proved to be untrue. The burden is on

, < ' "

the person seeking to displace the statutory presumption and if he . chooses to rely on the testimony of a witness which the Court is not prepared to believe the matter ends there. The duty of displacing the presumption lies on the person who questions it. The Court is of course bound to consider such evidence as is adduced

but .it is not bound to believe such evidence nor is there any duty whatever on the Court to conduct an enquiry on its own.

There is nothing in this point.

But we again wish to discountenance the suggestion that the Committing Magistrate should have been examined to prove the trurh of his certificate and we endorse the remarks we made in Kashmera Singh v. The State of Madhya Prvidesh(1) based on the decision of the Privy Council in Nazir Ahmad v. King Emperor(2) regarding rhe undesirability of any such practice.

But even if the fact be true that the deposition was , not read over, th<!t would only amount to a curable

irregularity and~ as the Privy Council observed in Abdul Rahman v. King Emperor(3 ), in the absence of prejudice which must be disclosed in an affidavit which shows exactly where the record departs from what the witness actually said, there is no point in the objection. The object of the reading over prescribed by section 360 of the Code of Criminal Procedure is not to enable the witness to change his story but to ensure that the record faithfully and accurately embodies the gist of what the witness actually said. Therefore, before prejudice can be substantiated on this score, it must be disclosed by affidavit exactly where the maccuracy lies.

The next and last objection is on similar lines. Jit Singh, P. W. 2, and Jagir Singh, P. W. 4, said that their statements before the .Committing Magistrate were made under the threats and duress of the police.

It was argued that that should not have been rejected • without further enquiry, and a ruling in which a further enquiry was considered necessary was cited. Here

~ (1) [1952] S.C.R. 526.

(2) A.I.R. 1936 P.C. 253 at 258.

(3) A.I.R. 1927 P.C. 44 at 46-47.

Bhagtvan Singh

The State of

Punjab.

Bose/.

Bliagwan Singh

The State of

Punjab.

Bose/.

again, it is_ no part of a Court's duty to enter upon a roving enquiry in the middle of a trial on matters which are collateral to the main issue. The burden is. on the person making these allegations to substantiate them and if he chooses to rely on evidence which does not satify the Court he must suffer the same fate as every other person who is unable to discharge an onus which the law places upon him.

It was also argued that there was no proper compliance with the provisions of section 342 of the Criminal Procedure Code. We are satisfied that there was substantial compliance in this case. The facts were simple and few and the crucial matters were brought to the attention of the appellant. In any event, the learned counsel was unable to tell us even at the argument stage exactly how his client was prejudiced and tell us what answers his client would have given to the questions which, according to counsel, ought to have been put to the appellant.

We pressed him several times to disclose that but he was unable to do so.

As we said at the outset, the case is a very simple one in which a man was caught red-handed with a pistol still in his hand and in which the first information report was recorded practically on the spot within 15 minutes of the occurrence. The murder was committed in day light and there was no dearth of eye-witnesses.

Two have been believed, and in the case of the other tWo, certain statements made by them in the Sessions Court resiling from statements previously recorded in the committal proceedings have been disbelieved.

The appeal fails and is dismissed. We see no reason to interfere with the sentence of death.

Appeal dismissed • .

Age_nt for the appellant : Sanker Das.

Agent for the respondent : P:· A. Mehta.

' ... ' ~

BHAGW AN SINGH

THE STATE OF PUNJAB

VIVIAN BoSE JJ

Criminal Procedure Code, 1898

sec. 540

Criminal Procedure Code

sec. 537

sec. 145

sec. 288

sec. 288

sec. 157

sec. 288

sec. 80

State of It

Bhandari

Soni

T. R. Bhasin

Goprd Singh

Bhagwan Singh

Buggar Singh

section 19(f)

section 107

Code of Criminal Procedure

7th of September 1950

Jit Singh

Jit Singh

Jagir Singh Patwari

Bhag Singh

Balbir Singh

Jaswant Singh

section 540

section 537

section 208(1)

section 540

Abdul Qadir

section 540

Bhagwan Singk

State of

Punjab.

Bose/.

iBhagwan Singh

State of Puniab

section 540

Allahabad High Court

Lahore High Court

section 208

section 347

Bhagwan Singlr

section 540

section 540

section 162

State of

Punjab.

Bose

section 537

Balbir Singh

Jagir Singh

section 288

Jaswant Singh

section 157

section 146

Section 145

section 145

Bhagwan Singh

State of

Puniab.

Bou

section 145

section 288

section 288

section 145

section 145

section 145

section 288

Indian Evidence Act

Section 157

Indian Evidence Act

section 145

section 157

section 288

section 288

Jagir Singh

section 145

lihogwan Singh

Bose/.

lihogwan Singh
·· The State of

Pnnjab.

State of

Pnnjab

section 145

section 80

Indian Evidence Act

section 360

Code of Criminal Procedure

Bhagtvan Singh

State of

Punjab.

Bose/.

Bliagwan Singh

section 342

Sanker Das

A. Mehta