6 S.C.R.

SUPREME COURT REPORTS 301

derable force.

At any rate we do not think that there are lll1Y substantial grounds upon which we can look at these transact10ns in a different way. If these documents go away, as also Exs. Al and A2, we are left with only Exs.

A3 and A4. Some argument was advanced before us to the effect that the lands comprised in the transactions repre- !iented by these documents have no direct access to tne road and that, therefore, they could not have fetched a good price.

Bearing in mind the fact that these are all agricultural lands a rate of Rs. 4,500 per acre at which they were sold cannot prima facie be regarded as inadequate.

As regards access, it is sufficient to say that they are parts of the same field which abut on the road, though the portions sold do not themselves abut on the road.

Since the lamls :;:; Id under these sale deeds were part and parcel of the same field which abuts on the road those who purchased these lands would naturally obtain a right of way

over the land unsold so as to have access to the road.

In the circumstances we hold that the appeal is without substance. Accordingly we dismiss it with costs.

Appeal dismissed.

RANI RATNA PROVA DEVI RANI SAHEBA OF

DHENKENAL

STATE OF ORISSA AND ANOTHER

(P. B. GAJENDRAGADKAR,

K. N. WANCHOO, K. C. DAS GUPTA, I. c. SHAH AND N. RAJAGOPALA AYYANGAR JI.)

ConJtitutio11 of India, 1950, Arts, 14 and 366(22)-0rissa Private Landr

of Rulers (Assessment of Rent) Act (13 of 1958), 11. 5 and 6- Validity-''Rulet', meaning of.

The petitioners in these three writ petitions challenged the operative provisions of the OrisSa Private Lands of Rulers (Assessment of Rent) Act, 1958 and the Rules framed thereunder. These petitioncro posses•

l9M

K. Kllllkarath-

...

Stilt< of Andhra Pradesh

Mudhalkar I.

lan•Vf, 11

1964 private lands in the State of Orissa, which before the impugned Act were Rani - not subjected to the payment of rent. but which were assessed by the 1:):., n;-ovo Revenue Officers in conformity with the Rules framed under the Act. The

-,. petitioners claims a writ in the nature of certiorari quashing the said orders Stott o/ on.a of assessment. The Act was passed by the Orissa Legislature because it was thought expedient to provide for assessment of rent with respect to the private lands of Rulers in the State of Orissa.

The main object of the Act is to authorise the levy of rent 1n respect of the private lands of persons included in the definition of the word "Ruler"' prescribed by s. 2(h l of the Act. Section 2(h) defines a "'Ruler" as meaning the Ruler of a merged territory in the State of Orissa and includes his relatives and dependants. The petitioners attacked the provisions of the Act mainly on the ground that they contravened Art. 14 of the Constitution.

Held: (i) that s. 6 of the Act does not contravene Art. 14 of the Constitution for the reason that fair and equitable tests have been laid down under s. 6 of the Act for determining the rent which should be assess ed in respect of the private lands of the Rulers. In the present case the legislature had prescribed the method of determining the rent payable on the private lands; and the relevant factors specified by s. 6 appear to be just and substantially simiJar to the considerations which are generally taken into account at the time of survey settlement for determining the proper revenue assessment on ryotwari lands.

The problem posed by the requirement to levy assessment on these private lands had to be dealt with by the legislature on an ad ,\oc basis.

The settlement of rent and assessment introduced by the Act had been made applicable to these lands for the first time, and so, these lands could not be treated as comparable in every respect with the lands which were governed by the rates prescribed under the previous !\ettlement.

(ii) In considering the validity of a statute under Art. 14 the well~ established principle is that the legislature can make class legislation, provided the classification on which it purports to be based is rational and has a reasonable nexus with the object intended to be achieved by it. If the party fails to show that the said classification is irrational, or has no nexus with the object intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the initial presum ptiori goes against his claim that the Act is invalid.

In all oases where the material adduced before the court in matten relating to Art. 14 is unsatisfactory, the court may have to allow tho State to lean on the initial presumption of constitutionality.

(iii) There is no substance in the contention that the impugned Act is void because the definition of the word "Ruler" is inconsistent with Art. 366(22) of the Constitution. There is no doubt that the definition of the word "Ruler" prescribed by s. 2(h) of the Act is wider than that prescribed by Art. 366(22) of the Constitution.

The definitions prescribed by Art. 366 are intended for the purpose of 1964 interpreting the articles in the Constitution itself. unless the context other- R .

RatnapTDN wise requires. The whole object of defining the word "Ruler" in the Act ani Del'l ia to specify and describe the lands in respect of which the operative pro- T.

Yisions of the Act would come into play.

It is in that connection that State of Orilla the word "Ruler" has been broadly defined in an inclusive manner.

(iv) The impugned Act is entirely outside the purview of Art. 31 of the Constitution as it has not purported either to deprive the Rulers of their property, or to acquire or requisition the said property. It is a simple measure authorising the levy of a tax in respect of agricultural lands.

Pratap Kesari Deo v. The State of Orirsa, A.I.R. 1961 Orissa 13J. relied on.

ORIGINAL JURISDICTION: Writ Petitions Nos. 79 and 80 of 1963 and 140 of 1962.

Petitions under Art. 32 of the Constitution of India for the enforcement of Fundamental Rights.

S. N. Andley, Rameshawar Nath and P. L. Vohra, for the petitioner (in Petition Nos. 79 and 80 of 1963).

Sarjoo Prasad, Ajoy Kumar Gajdhar Mahapatra and A.. D. Mathur for the petitioner (in Petition No. 140/1962).

S. V. Gupte Additional Solicitor-General, S. B. Misra, R. Ganapathi Iyer and R. N. Sachthey, for the respondents (in all the petitions).

M. C. Setalvad, J. B. Dadachanji, Ravinder Narain and

0. C. Mathur, for the interveners (in Petition No. 140/

1962).

January 23,

1964. The Judgment of the Court was delivered by

GAJENDRAGADKAR J.-The pellt1oners in these three Ga1••dragadkar I. petitions have moved this Court under Art. 32 of the Constitution and claimed a declaration that the operative provisions of the Orissa Private Lands of Rulers (Assessment of Rent) Act. 1958 (hereinafter called 'the Act') and the Rules framed thereunder are unconstitutional and ultra vires.

The private lands in the possession and enjoyment of the three respective petitioners have been assessed by the

Revenu~ Officers in conformity with the Rules framed under the Act. The petitioners claim a writ or direction, or order

1964 in the nature of certiorari quashing the said orders of assess- &ni aprova ment.

vi The petitioner in Writ Petition No. 140/1962 is the Stat• of Ori"a Patrani Saheba of Keonjhar and is in possession and enjoy-

Gaf•ndkar J. ment of eght villages, viz., Mangalpur; Barigan; N'.la Rampas; NI!ung; Ghutru; Mohadijore; Patang and Anara in the district of Keonjhar.

These villages were granted to her for maintenance a long time ago and as such, they have been recorded in the village papers as Khoraki Posaki

(Maintenance Grant) Lands since the last settlement of 1918.

She has held these lands without paying assessment; and her case is that the rekvant provisions of the Act which authorise the levy of assessment in respect of her lands are unconstitutional and invalid.

In her petition, she has referred to the fact that from time to time, the Government of the day had refrained from levying any assessment in respect of her lands and thereby recognised her right to hold the said villages on assessment-free basis.

The Revenue Officer of Keonjhar levied an assessment in respect of the said villages purporting to act under the Rules framed under the provisions of the Act. The petitioner then preferred appeals to the Board of Revenue against the said assessment orders but these appeals were dismissed.

The assessment levied against the petitioner in respect of these rands is of the order of Rs. 9,000 and odd and it has to be paid by her from 1958 retrospectively.

The petitioner in W .P. No. 79 /1963 is Smt. Rani Raina Prova Devi who is the wife of Raja Sankar Pratap Singh Deo Mahindra Bahadur, ex-Ruler of Dhenkanal State in Orissa.

At the time when the State of Dhenkanal merged with India, the petitioner was in possession and enjoyment of lands in five villages as a Qroprietor. In respect of these lands, assessment had never been levied; but purporting to give. effect to the relevant provisions of the Act, the Revonue Officer Dhenkanal assessed rent in respect of all the lands which are in possession and enjoyment of the petitioner. The appeals preferred by the petitioner against the said order of assessment failed; and so, the petitioner filed the present writ petition challenging the validity of the Act as well as the validity of the assessment order.

The petitioner in W.P. No. 80 of 1963 is the ex-Ruler lf611 of Dhenkanal.

On the date of merger he held and was in Rani Rlltnaprovo possession of 89 acres 18 dee. and 5 kadis of land in Niz- Devi garh Town as his private lands.

These lands were never state !i Orln4 subjected to the payment of rent and yet the Revenue Offi- . - cers assessed rents in respect of these lands under _ the Gai•ndrapdkar 1

provisions of the Act.

The petitioner failed in persuading the Appellate Authority to set aside the order of assessment, and so, has filed the present writ petition challenging the validity of the Act and the order of assessment.

Thus, the facts on which the three petitions claim relief are substantially 5imilar and they have raised common points of law for our decision.

That is why the three petitions have been heard together and would be disposed of by a common judgment.

The Act which is challenged in the present proceedings was passed by the Orissa Legislature because "it was thought expedient to provide for assessment of rent with respect to the private lands of Rulers in the State of Orissa".

It received the assent of the Governor on the 21st Mav, 1958 and was published in the State Gazette on the 6th Iune, 1958. It consists of 15 sections and the main object of the Act is to authorise the levy of rent in respect of the private lands of persons included in the definition of the word "Ruler" prescribed by s. 2 ( h) of the Act. Section 2 ( e) defines 'private land' as meaning any land held on the date of merger by a Ruler free from payment of rent, while s. 2(h) defines a "Ruler" as meaning the Ruler of a merged territory in the State of Orissa and include~ his relatives and dependants. Thus, the definition of the word "Ruler" is an inclusive definition and takes within its sweep the relatives of the Ruler and his dependants, with the result that private lands held by such relatives or dependants by virtue of the grants made by the ruling_ Prince ?~ otherwise come within the mischief of the operative prov1s1ns of the Act.

Section 2(i) provides that all other expressions. used and not defined in the Act shall have the same meanmg as are resi; iectively assigned to them under the tenancy laws in force in the concerned areas.

Section 3 contaim he main operative provision and it lays down that notwlth

134-159 S.C.-20

~ standing anything contained in any other law, custon::, con- Rani Ratnaprova tract or agreement to the contrary, the private lands neJ<l

D.vl by a Ruler shall, with effect from the date of commence- State i Orl."a men! of this Act, be liable to assessment and levy of rent

0 ,.1, ndragadkar J. s provid.ed in the Act.

Thus, the effect of this provision is that pnvate lands held by Rulers which till then were not liable to pay rent or assessment, were made liable to pay the same.

In other words the exemption from the payment of assessment or rent which the private lands of Rulers enjoyed till then ceased to be operative, and the said !ands were treated like other lands in the State liable to pay assessment and rent.

Section 4 provides for the appointment of Revenue Officers, and sections 5 and 6 deal with the classification of lands and prescribe the maximum rates of rent, and the procedure in detennining the rent respective; y. Under s. 5, the lands have to be classified as irripted-wet land, rainfed-wet land, and dry land; this section provides that subject to the provisions of s. 6, the rates at which the fair and equitable rent shall be assessed with respect to the said th re.~ cRl c.cries of land shall not exceed the amount as may be prescribed from time to time by the State Government.

The proviso to s. 5 deals with the special category of cases where the tenants of the Ruler have already acquired rights of occupncy, and lays down that the rent payable by the Ruler in respect of such lands shall be such proportion of the rent received by him from the tenants as may be prescribed. Under s. 6, the consideratiu:i< which have to be borne in minJ in cietermining the rates of fair r.nd eqt!itaole rent are specified by clauses (a) to ( e), viz., the nature of the soil and general productivity of such land; the class under which the land is assessable; market value of the land; the prevailing rates of rent obtaining for similar Janda in the neighbourhood; and such other matters relating thereto as may be prescribed. It is thus clear that whereas s. 5 requires the classification of the Ruler's private lands to be made and provides for the prescription of the maximum of the rent which may be levied in respect of them, s. 6 indicates the factors which have to be borne in mind in determining the rates of fair and equitable rent. Clause (e)

shows that in addition to the factors mentioned in clauses 1964

(a) to (d), other matters may also be specified by the Rules. Rani Ratnaprova The rest of the sections deal with matters relating to tho Devi levy and recovery of assessment with which we are not Stat• !; Orina concerned in the present petitions.

Gai•ndragadk., J.

The first contention which has been raised before us by the petitioners is that the provisions contained in sections 5 and 6 are invalid inasmuch as they contravene Art. 14 of the Constitution. It is convenient to refer to some facts set out in W.P. No. 79/1963 in support of this argument.

We have already noticed that under s. 6 certain considerations which the Act considers to be relevant have been prescribed, and so, the Revenue Officer has to bear those considerations in mind in determining the fair and equitable rent in respect of a given land.

W.P. No. 79/1963 points out that as a result of the consideration of the relevant factors mentioned in s. 6, the rates fixed by the reliminary pattas in respect of the petitioner's lands are in every case higher than the rates of rent which are in operation in respect of the Revisional Settlement Khatian. Basing themselves on the fact that in the calculation of the rent made by L'ie Revenue Officers in respect of the private lands of Rulers they have arrived at a figure of rent which is generally higher than the rent which would be determined in case the rates current under the Settlement prevailing in respect of the other lands were applied, the petitioners contend that in their operation the relevant provisions of the Act have introduced an illegal discrimination as between their lands and the other lands liable to assessment of rent in the State of Orissa. It is also, urged in support of this argument that it would not be a\valid consideration for levying higher assessment in respect of the private lands of Rulern that they were not required to pay assessment until the Act was passed. The legislature may in its authority make the private lands of Rulers liable to assessment of rent, but when these lands are brought within the class of assessable lands, they should be treated in the same way as the other assessable lands are treated in Orissa. That, briefly stated, is the contention on which the validity of the

ct is challenged under Art. 14. Prima facie, there is

1164 some force in this contention.

But, on the whole we arc llmti R;;;;.,, prova not satisfied that the plea thus raised by the petitioners can

!Nvi be said to di; place and rebut the initial presumption of con- "· Slid• of Orina stitutionality in favour of the impugned Ftatute.

Gn4r•f0dkor J.

In dealing with tl•e question raised before UF it is necessary to bear in mind the fact that in regard to other assessable lands, a survey settlement which had already been made was in operation and was expected to continue in operation for a certain specified period; usually, when a settlement has been made and assessment levied in pursuance of it, it cannot be revised merely by an executive order during the stipulated period, though, of course, the legislature can, if it so desires, make a law prescribing for a fresh assessment even during the said specified period.

But, in the present case, the legislature appears to have taken the view that it was not necessary or expedient to introduce a fresh • settlement in regard to all the other assessable lands, and so, it has passed the present statute only in regard to the private lands of Rulers.

That is one relevant and historical fact which cannot be ignored. •

Proceeding to deal with the private lands of Rulers on this basis, the legislature had to prescribe the method of determining the rent payable by the said lands; and the relevant factors specified by s. 6 ap; iear to be just and subtan tially similar to te considerations which are generally taken into account at the time of survey settlement for determining the proper revenue assessment on ryotwari lands.

There has been some argument at the Bar before us as to whether the market value of the land which has been prescribed as a relevant consideration by s. 6 was also treated as relevant on the occasion of the earlier settlement.

No material has, however, been placed before us in that behalf, and so, it is not possible to decide whether this consideration was taken into account on the earlier occasion or not, and if it was not, what the effect of the said circumstance would be on the validity of the impugned statute.

Having regard to the relevant factors presi; ribed by s. 6, it would, however, not be unreasonable to take the view that fair and equitable tests have been Iaici down for determin~

ing the rent which should be assessed in respect of the private lands of the Rulers, aPd in the absence of any proof Ralfi 11atna,_ that there has been a material departure in that behalf, we Dttll find it difficult to uphold the plea that s. 6 can be attacked llal• !i <>ru. on the ground that it has contravened Art. 14 of the Con- Gajendraiodkar I.

stitution.

The problem posed by the requirement to levy assessment on these private lands had to be dealt with by the legislature on an ad hoc basis. The settlement of rent and assessment introduced by the Act had been made applicable to these lands for the first time, and so, strictly speaking, these lands cannot be treated as comparable in every respect with the lands which ere governed by the rates prescribed under the previous settlement and that may help to meet the argument that the impugned Act contravenes Art.

14. If the two categories of lands do not constitute similar lands in all particulars, no valid complaint can be made on the ground that there has been discrimination as between them. That is another aspect which may be relevant.

There is yet another factor which may be mentioned in this connection. It appears that in 1959, the Orissa Legislature has passed an Act, No. 3 of 1959 with a view to conolidate and amend the Jaws relating to survey, record of rights and settlement operations in the State of Orissa, and so, it appears that after the settlement operations are duly conductea and completed under the relevant provisions of this latter Act, assessment in regard to all the assessable lands, including the private lands with which we are concerned in the present proceedings would be made on the basis precribed by it.

The operation of sections 3, 5 and 6 of the impugned Act is, therefore, limited to the period

lletween June, 1958 when the Act came into force and the date when the assessment determined under the provisions of the subsequent Act actually come into operation in respect of all the lands. That is another factor which has to be considered in dealing with the question about the validity of the impugned Act.

The allegations made by the petitioners, in challonginc the validity of the Act are somewhat vague and the mate-

!!!!,. rials placed by them in support of their challenge are inltJJlli RatMprova sufficient, inadequate and unsatisfactory.

The rerly made

~:•' by t?e State is also not very helpful or satisfactory.

It is State of Ori61a precisely where a challenge to the validity of a statute is

G•iendratadkar J. mae by a paty under Article 14 and he fails to adduce satisfactory evidence in support of his challenge that the task of the Court to decide the issue becomes very difficult.

In considering the validity of a statute under Art. 14, we cannot ignore the well-established principle that the legislature can make class legislation, provided the classification on which it purports to be based is rational :; nd has a reasonable nexus with the object intended to be achieved by it, and so, on the failure of the party to show that the said classification is irrational, or has no nexus with the obiect intended to be achieved by the impugned Act, the initial presumption of constitutionality would help the State to urge that the failure of the party challenging the validity to rebut the 'initial presumption goes against his claim that the Act is invalid. In all cases where the material adduced before the Court in matters relating to Art. 14 is unsatisfactory, the Court may have to allow the State to lean on the doctrine of initial presumption of constitutionality and that is precisely what has happened in these cases. On the whole therefore we must hold that the petitioners have failed to show that the impugned Act contravenes Art. 14 of the Constitution.

It is then argued that the Act is invalid because the definition of the expression "Ruler" is inconsiste'-1t with the definition of the sai<I word prescribed by Art. 366(22) of the Constitution.

Art. 366(22) defines a "Ruler" in relation to an Indian State as meaning the Prince, Chief, or other person by whom any such covenant or agreement as is referred to in clause (1) of Art. 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler. There is no doubt that the definition of the word " Ruler" prescribed by s. 2(h) of the Act is wider thaa that prescribed by Art. 366(22). The dependants of the Ruler and his relatives not included in the latter defini..

tion, though they are expressly included in the former. But 1964 it must be remern hred that the definitions prescribed by Rani Ratnapron Art. 3 66 are intended for the purpose of interpreting the Devi articles in the Constitution itself, unless the context other- Stat• i ortno wise requires, and so, the argument that the definition of - th d "R 1 " 'bed b h A · . h Gai<ndragadkar I. e wor u er prescn y t e ct 1s mcons1stent wit the definition prescribed by Art. 366(22), has really no substance or meaning.

Besides, it is fallacious to assume that the Act ha> made any provision in respect of Rulers as such; what the Act has purported to do is to authorise the levy of assessment and rent in respect of lands situated in Orissa; tese lands are the private lands of the Rulers as defined bys. 2(h), and so, 'there is no doubt ihat the whole object of defining the word "Ruler" is to specify and describe the lands in respect of which the operative provisions of the Act would come into play.

The subject-matter of the levy consists of the private lands and the compendious way adopted by the legislature in describing the said lands is tbat they are the private lands of the Rulers.

It is in that connection that the word "Ruler" has been broadly defined in an inclusive manner.

If the legislature had said that the private lands of the Rulers as well as the pnvate lands of the dependants and relatives of Rulers were liable to the levy permitted under s. 3, the petitioners would not have been able to raise any objection because, then, it would have been unnecessary to define the word "Ruler" in a comprehensive way.

Once it is conceded, as it must be, that the Orissa Legi, lature was competent to pass the Act under Entry 18 of List II of the Seventh Schedule, it is idle to suggest that the method adopted by the Act in describing the lands which are made liable to pay assessment, introduces any infirmity in the Act itself.

Therefore, we are satisfied that the contention that the definition of the word "Ruler" is inconsistent with Art. 366(22) and that makes !he whole Act void, is without any substance.

The third argument which was faintly urged before us is that the Act contruvenes the provisions of Art. 31 of the Constitution.

This argument is wholly misconceived. Art. 31 (I) deals with the deprivation of property save by authe>- rity of Jaw, and cannot obviously be invoked against any

1964 of the provisions of the Act; and Art. 31 (2) deals with Jt4nt RaJn.aprova compulsory acquisition or requisition which also is entirely

1!v• inapplicable to the present Act.

What the Act has pur-

S1a11 of Ori"a ported to do is to authorise the levy of assessment in res-

Goillldraiadkar J. pct of lands which till then had been exempted from the said levy, and as Art. 31{5)(b)(i) provides nothing contain ed in clause (2) shall affect the provisions of any Jaw which the State may make for the purpose of imposing or levying. any tax or penalty. If the Orissa Legislature has imposed a tax in the form of the assessment of the private lands of Rulers, clearly it has not purported either to deprive the Rulers of their property, or to acquire or requisition the said property; it is a simple measure authorising the levy of a tax in respect of agricultural lands and as &uch, it i~ entireiy outside 'the purview of Art. 31.

It appears that in Pratap Kessari Deo v. The State of Orissa & Ors., ( 1 ) the validity of the Act was challenged before the Orissa High Court, and the said High Court has repelled the challenge and upheld the validity of the Act.

In our opinion, the view taken by the Orissa High Court is right.

January, U

The result is. the petitions fail and are dismissed with costs.

One set of hearing fees.

Petition dismissed.

FADDI

l'.

THE STATE OF MADHYA PRADESH

(M. HIDAYATULLAH AND RAGHUBAR DAYAL JJ.)

First lnformatinn Report by accused--Admi.sibility in Evide11c~-lndia•

Evidenc~ Act. 1872 (1of1872) ss. '.!l, 25-Code of Cri1ninal Pro; tdu'" 1898 (V of 1898), r. 162.

On the first information report lodged by th~ appellant, the corpse of his step-son was recovered. The police arrested three oth .... ner<; ons indicated to be the culprits, but as a result of the investigatio11. Lbe arpellant

(') A. I. R. 1961 Orissa, 13!.

STATE OF ORISSA AND ANOTHER

P. B. GAJENDRAGADKAR

K. N. WANCHOO

K. C. DAS GUPTA

I. c. SHAH

N. RAJAGOPALA AYYANGAR

Private Landr

of Rule

K. Kllllkarath-

Orissa

s. 2(h l of the Act. Section 2(h)

Art. 14

s. 6

Art. 14

s. 6

s. 6

Art. 14

Art. 14

Art. 366(22)

s. 2(h)

Art. 366(22)

Art. 366

Art. 31

Art. 32

Constitution of India

S. N. Andley

Rameshawar Nath

P. L. Vohra

Sarjoo Prasad

Ajoy Kumar Gajdhar Mahapatra

A.. D. Mathur

S. V. Gupte

S. B. Misra

R. Ganapathi Iyer

R. N. Sachthey

M. C. Setalvad

B. Dadachanji

Ravinder Narain

C. Mathur

GAJENDRAGADKAR

Art. 32

Barigan

Ghutru

Mohadijore

Patang

Keonjhar

Rani Raina Prova Devi

Dhenkanal State

State of Dhenkanal

India

Dhenkanal

21st Mav, 1958

6th Iune, 1958

s. 2

Section 2

s. 2(h)

Section 2(i)

Section 3

ndragadkar

Section 4

sections 5 and 6

s. 5

s. 6

s. 5

s. 6

s. 5

s. 6

Rani Ratnaprova

Gai•ndragadk

sections 5 and 6

Art. 14

s. 6

s. 6

Art. 14

s. 6

s. 6

s. 6

s. 6

Art. 14

Art.

14

Orissa Legislature

sections 3, 5 and 6

G•iendratadkar

Article 14

Art. 14

Art. 14

Art. 14

Art. 366(22)

Art. 366(22)

Art. 291

s. 2(h)

Art. 366(22)

Rani Ratnapron

Art. 3

Art. 366(22)

s. 3

Seventh Schedule

Art. 366(22)

Art. 31

Art. 31

Art. 31

Art. 31

Art. 31

Orissa High Court

STATE OF MADHYA PRADESH

M. HIDAYATULLAH

RAGHUBAR DAYAL


SUPREME COURT REPORTS (1g64J

1964 of the provisions of the Act; and Art. 31 (2) deals with Jt4nt RaJn.aprova compulsory acquisition or requisition which also is entirely

1!v• inapplicable to the present Act.

What the Act has pur-

S1a11 of Ori"a ported to do is to authorise the levy of assessment in res-

Goillldraiadkar J. pct of lands which till then had been exempted from the said levy, and as Art. 31{5)(b)(i) provides nothing contain ed in clause (2) shall affect the provisions of any Jaw which the State may make for the purpose of imposing or levying. any tax or penalty. If the Orissa Legislature has imposed a tax in the form of the assessment of the private lands of Rulers, clearly it has not purported either to deprive the Rulers of their property, or to acquire or requisition the said property; it is a simple measure authorising the levy of a tax in respect of agricultural lands and as &uch, it i~ entireiy outside 'the purview of Art. 31.

It appears that in Pratap Kessari Deo v. The State of Orissa & Ors., ( 1 ) the validity of the Act was challenged before the Orissa High Court, and the said High Court has repelled the challenge and upheld the validity of the Act.

In our opinion, the view taken by the Orissa High Court is right.

January, U

The result is. the petitions fail and are dismissed with costs.

One set of hearing fees.

Petition dismissed.

FADDI

l'.

THE STATE OF MADHYA PRADESH

(M. HIDAYATULLAH AND RAGHUBAR DAYAL JJ.)

First lnformatinn Report by accused--Admi.sibility in Evide11c~-lndia•

Evidenc~ Act. 1872 (1of1872) ss. '.!l, 25-Code of Cri1ninal Pro; tdu'" 1898 (V of 1898), r. 162.

On the first information report lodged by th~ appellant, the corpse of his step-son was recovered. The police arrested three oth .... ner<; ons indicated to be the culprits, but as a result of the investigatio11. Lbe arpellant

(') A. I. R. 1961 Orissa, 13!.

FaJdi

"'

was &ent up for trial for the murder and sentenced to death. Th¢ High Court confirmed the C" f!viction and sentence. On appeal by special leave it was contended that the first information report was inadmissible in evi~

dence nd should not have been, therefore, taken on the reord.

State of Mtulh7'>·

Held: There v, as no force in the contention. The report was neit'~\.r confession of the accused nor a statement made to a police officer during the ..:ourse of investigation. Section 25 of the Evidence Act and s. 162 of the Code of Criminal Procedure do not bar its admissibility. The report was an admission by the accused of certain facrs which had a bearir.b on the question to be determined by the Court viz., how and by whom the murJcr was committeJ, or whether the accuser.l's statement in court denv

ing the correctness of certain statements of the prosecution witnesses was

corrct or not. 1\dn1!ssions are admissib!e in cvitlence under s. 21 of the Evidence Act and admission of an accused can be proved against him.

Dal S£ngli v. King Emperor, L. R. 44 I.A. 137, applied.

Ni.mr Ali v. Stai. of U.P. [1957] S.C.R. 657, considered and distingui~.hi:J.

State v. Balach.ind /\ l.R. 1960 Raj. Io'l. State of R, ajasthan v.

Shiv Singh A.LR. 1962 Raj. 3 and.Allohdia.v. State, 1959 All. LJ. 340.

referred to.

CRIMINAL APPELLATE JURlSUICT!ON: Criminal Appeal No. 210 of 1963.

Appeal by special leave from the judgment and order dated July 27, 1963, of the Madhya Pradesh High Court (Gwalior Bench) in Criminal Appeal No. 83 of 1963 ; ind Criminal Reference No. 4 of 1963.

K. K. Luthra, for the appellant.

I. N. Shroff, for the respondent.

January 24, 1964.

The Judgment of the Court was delivered by.

Pra<hlh

_RAGHUIJAR DAYAL. J.-'.addi appals. by special leave, Raghubar Dayal I; aga1mt the order of tne High Court of Madhya Pradesh confirming bis conviction i.lnd sentence of death under s. 302 I.P .C. by the Additional Se1sions J uclge, Morena.

Jaibai, widow of Buddhu, began to Jive with Faddi 8 few years after the death of her husband Buddhu.

Faddi and Jaibai 81 first lived 8! Agra, but later on shifted to

1964 Morena.

Jaibai had a son named Guiab, by Buddhu.

Faddi Guiab was aged 11 years and lived in village Torkheda at

• 1v.M dh the house of his phupa Ramie. He was living there from ... tale o a ya Pradesh Sawan, 1961.

Raehubar Dayal J.

Gulab's corpse was recovered from a well of village Jarah on January 21, 1963.

It reached the mortuary at Morena at 5-15 P.M. that day. It is noted on the postmortem report that .it had been despatched from the place of occurrence at 1 P.M.

Dr. Nigam, on examination, found an injury on the skull and has expressed the opinion that 1he boy died on account of that injury within two or three days of the post-mortem ex.1mination.

He stated in Court that no water was found inside either the lungs or the abdomen or the larynx or in the middle ear.

This rules out the possibility of Gulab's dying due to drowning.

As a result of the investigation, the appellant and one Banwari were sent up for trial for the murder of Guiab.

It is interesting to observe the course of the inve,1tigation. The police knew nothing of the offence till 9 P.M. on January 20, 1963, when the appellant himself went to the police station, Saroichhola, and lodged a first informatio~ rep01t stating therein that on peeping into the well near the reepul tree of Hadpai on the morning of January 20, 196'.l, he found hi> son lying dead in the well.

Earlier, he had narrated the events leading to his observing the corpse and th.'lt narration of facts accused Ramie, Bhanta and one cyclist of the offence of murdering the boy Guiab.

It wai this information which took the police to the well and to the recovery of the corpse.

The police arrested the persons indicated to be the culprits, viz., Ramie, Bhanta and the cyclist, who was found to be Shyama, by January 26.

These persons remained in the lock-up for 8 to 11 days.

In the meantime, on January 26, the investigation was taken over, under the orders of the Superintendent of Police, by the Circle Inspector, Nazai Mohd. Khan from Rajender Singh, who was the Station Officer of Police Station, Saraichhola. The Cirde Inspector arrested Faddi on January 27.

The other arrested persons -were got released in due course.

Faddi took the Circle

Inspector to the house and, after taking out .a pair of shorts 1964 of Guiab, de!i;.:red them to the Circle Inspector.

Ramie, Faddi Bhanta alias Dhanta and Shyamlal have been examined as s 1•M dh . .

N 15 5 . t•t• o a ya prosecul!on witnesses os. , 4 and respectively.

Pradesh

. . • Rathubar Dayal 1.

TI1e conviction of the appellant 1s based on circumstantial evidence, there being no direct evidence about his actually murdering Guiab by throwing him into the well or by murdering him first and then th owing the dead body into the well.

The circumstances which were accepted by the tril Court were these:

!. Faddi went to the house of Ramie at about noon on 19th January, 1962 and asked Ramle to send the boy with him.

Guiab was at the time in the fields.

After meals, Faddi left suddenly when Shyama arrived and gave a message to Ramle from Gulab's mother th at the boy be not sent with any one.

Faddi caught hold of Guiab from the fields forcibly and took him away. It may be mentioned here that one Banwari who has been acquitted is also said to have been with Faddi at this time.

2. Guiab had not been seen alive subsequent to Faddi's taking him away on the afternoon of January, 19. His corpse was recovered on the forenoon of January, 21. Faddi had not been able to give any satisfactory explanation as to how he and Guiab parted company.

3. Faddi knew the pl.ace where Gulab's corpse lay.

It was his information to the Police which led them to recover the corpse. His statement that he had noted the corpse floating on the morn

ing of January 20 was untrue, as according to the opinion of Dr. Nigam, the corpse could come up and float in the water approximately after two days.

The witnesses of the recovery deposed that they could not see the corpse floating and that it had to be recovered by tlle

use of angles.

1'64

Pot/di ...

Slat• of Madlrya

Pradull

R aghubar Dayal I

4. The accused's confession to J aibai and two other witnesses for the prosecution viz., Jimipal anel Sampatti about his killing Guiab.

5. The pair of shorts recovered was the one which

Guiab was wearing at the time he was taken away by Faddi.

The High Court did not rely on the confession and 011 the recovery of the pair of shorts from the appellant's possession, and we think, rightly. The evidence about the confession is discrepant and unconvincing.

Bhagwan Singh and Ramie deposed that the deceased was wearing the pair of shorts recovered, at the time the appellant took him away.

Bhagwan Singh did not go to the test identification.

The accused was not questioned about the deceased wearing these pair of shorts .at the time he was taken away from the village.

The High Court considered the other circumstance~

ufficient to establish that the appellant had committed the murder of Gu!Jb. It therefore confirmed the conviction and sentence.

Learned counsel for the ; ippellant has taken us through the entire evidence and commented on it.

He has contended that the evidence is unreliable .and should not have been accepted by the Courts below.

We have considered h~ criticism and are of opinion that the Courts below have correctly ap; ireciated the evidence.

It is not necessary for us to discuss it over again.

It may be mentioneu now that the appellant denies having gone to Ramie's house in village Torkheda and to have taken away Guiab from that village forcibly on the afternoon of January 19, but admits his lodging the report, and the recovery of the dead body from the well with the help of the angle.

He however states that he had lodged the report on the tutoring of one Lalla Ram of Utampur. He bas neither stated why he was so tutored nor led any evidence in support of his allegation.

In his report the appellant admitted the prosecution allegations up to the stago of

his forcibly taking away Guiab from village Tork:heda. He 1'64 then stated that Ramie, Bhatta and the third person, viz., FaAdi Shyamlal threatened him with life, took out the pyjama and •. half-pant froin the body of Gui.ab and taking the boy with State p~:f,, ad/rya them remained sitting on the well near the peepul tree of - Hadpai.

The appellant kept himself concealed from their Rafl:iubar Dayal J. view, .nearby. He heard the sound of something being thrown into the well.

Those three persom then ran away, but he himself remained sitting there lthroughout the night and then, on peeping into the well next morning, observed the corpse of his son in the well.

He then went to Morena, consulted one Jabar Singh. Vakil, and one Chhotey Singh and was advised to lodge the report.

He definitely accused

R.mle, Bhatta and the cycle-rider with killing his son Guiab by throwing him into the well.

This report is not a confessional statement of the appellant.

He states nothing which would go to show that he was the murderer of the boy.

It is the usual first information report an aggrieved person or someone on his behalf lodges against the alleged murderers.

The learned Sessions Judge and the High Court considered the appellant's stte ments in this report which went to explain his separation from Guiab on account of the conduct of Ramie and others and came to the conclusion that those statements were false.

This was in a way justified as the burden lay on the appellant to account for the disappearance of Guiab when the prosecution evidence showed that the appellant had taken Guiab with him.

Besides, what the appellant had stated in the report, he had given no explanation for the disappearance. Of course, he had denied that he took Guiab with him.

The evidence about that aspect of the case conists of the statement of Ramie, Shyamlal and Bhagwan Singh which have been accepted by the Courts below.

The High Court also took into consideration the fact that the appellant knew where the deceased's body was as it was on what he had stated in the report that the police went to the well of village Jarah and recovered the dead body. The accused gave no explanation in Court as to how he came to know about it.

What he had stated in the report had been considered and found to be untrue and

1964 . specially in view of the appellant's own conduct.

It has Fa:.d• been rightly _stressed that if Gu!ab had been forcibly taken State of Madhya away from him by Ramie and others, the appellant ordinari-

Ph ly would have gone and taken some action about it, without Raghubar Dayal J. wasting his time it1 just following those people.

Even if he felt interested in following them and had ha,,! th~ sound of something being thrown inside the well nd had also seen th:1se p.ersons running a\V~!y, he h~1d no rc:l-on to re!11:.1in hidden at that spot the whole night.

He should have informed people of wh.:t he hJd obsrnd as he must have suspected that these pcrso'1S had played mischief with Guiab.

The High Court also took into consideratioa the incorrectness of the appellant's statement that he observed the dead body floating in the well on the morning ot Januc; ry

20. It is contended for the appellant that the first information report was inadmissible in evidence and should not have

men therefore tJken on the record.

Jn support, reliance is placed on the case reported as Nisar Ali v. State of U.P.(').

We have considered this comention and do not see any force in it.

The report is not a confession of the appellant. It is not a statement made to a police officer during the course of investigation.

Section 25 of the Evidence Act and s. 162 of the Code of Criminal Procdure do not bar its admissibility.

The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court, viz., how and by whom the murder or Guiab was committed, or whether the appellant's statement in Court denying the correctness of certain statements of the prosecution witnesses is correct or not. Admissions are admissible in evidence under s. 21 of the Act.

Section 17 defines an admission to be a statement, oral or documentary, which suggests any inference as to any fact in issue or rel"> vant fact, and which is made by any of the persons, and under the circumstances. thereafter mentioned, in the Act.

Section 21 provides that admissions are relevant and may be proved as against a person who makes them. illustrations

( 1) [1957] S.C.R. 657.'

(c), (d) and (e) to s. 21 are of the circumstances in which 1964 an accused could prove his own admissions which go in his Faddi

favor in v 1 iew odf h~ exceptio 1 dns mentionedcdinbs. h21 to the State ol°Madhya provision t 1at a m1ss10ns cou not be prov y t e person Prade1h who makes them. It is therefoe clear th.at admissions of R h b-D al 1 . aguar ay . an accused can be proved agamst him.

The Privy Council in very similar circumstances, held long ago in Dal Singh v. King Empero1 (') such first information reports to be admissible in evidence.

It was said in that case at p. 1142:

I I/ "It is imprtant to compare the story told by Dal

Singh when making his statemnt at the trial with what he said in the report he made to the police in the document which he signed, a document which is sufficiently authenticated.

The report is clearly admissible.

It was in no sense a confession. As appears from its terms, it w:is rather in the nature of an infoimation or charge laid against Mohan and Jhunni in respect of the assault alleged to have been made on Dal Singh on his way from Hardua to Jubbulpore.

As such the statement is proper evidence against him ...... .

It will be observed that this statement is at several points at complete variance with what Dal Singh afterwards stated in Court.

The Sessions Judge regarded the document as discrediting his defence.

He had to decide between the story for the prosecution and that told for Dal Singh."

Leamed counsel for the appellant submits that the facts of that case were distinguishable in some respects from the facts of this case.

Such a distinction, if any, has no bearing on the question of the admissibility of the report. The report was held admissible because it was not a confession and it was helpful in determining the matter before the Court.

(') L. R. 44 I. A. 137.

Faddi

•• litm~ of Madhya

Pl'rllksh

4tqlou6ar Dayal I.

In Nis(Jr Ali's case(') Kapur J. who spoke for the Court said, after narrating the facts:

"'An objection has been taken to the admissibility of this report as it was \made by a person who was a co-accused.

A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under s. 157, Evidence Act, or to contradict it under s. 145 of that Act. It cannot be used as evidence against '!he maker at the trial if he himself becomes an accused, n0r to corroborate or contradict other witnesses.

In this case, therefore, it is not evidence."

It is on these observations that it has been contended for the appellant that his report !Was inadmissible in evidence.

Ostensibly, the expression 'it cannot be used as evidence against the maker at the trial if he himself becomes an accused supports the appellant's contention. But it appears to us that in the context in which the observation is made and in the circumstances, which we have verified from the record of that case, that the Sessions Judge had definitely 'held the first inform.ation report lodged by the co-accused who was acquitted to be inadmissible against Nisar Ali, and that the High Court did not refer to it at all in its judgment, this observation really refers to a first information report which is in the nature of a confession by the maker thereof.

Of course, a confessional first information report cannot be used .against the maker when he be an accused and necessarily cannot be used against a co-accused.

Further, the last sentence of the above-quoted observation is significant and indicates what the Court meant was that the first information report lodged by Qudratullah, the co-accused, was not evidence against Nisar Ali. This Court did not meanas it had not to determine in that case-that a first information reoort which is not a confession cannot be used as an admission under s. 21 of the Evidence Act or as a relevant statement under any other provision of that Act.

We find also that this observation has been unden:tood in this way by the Rajasthan High Court in State v. Balclzand(') and

<1; (19~7:s.c.R.657.

(1) A.I.R. 1960 Raj 101.

in State of Ra; asthan v. Shiv Singh(') and by the Allaha- . bad High Court in A/lahdia v. State( 2 ).

1!164

Faddi

We therefore hold that the objection to the admissibility 51• 1• P~!d::f1h1• of , the first information report lodged by the appellant is not - sound and that the Courts below have rightly admitted it in Raghubar Day-11. evidence and have made proper use of it.

The circumstances held established by the High Court are sufficient, in our opinion, to reach the conclusion that Guiab was murdered by the appellant who was the last person in whose company the deceased was seen alive and who knew where the dead body lay and who gave untrue explanation about his knowing it in the report lodged by him and gave no explanation in Court as to how he separated from the deceased.

We therefore dismiss the appeal.

Appeal di.rmi1sed.

BALMUKAND

KAMLA WA TI & ORS.

(K. SUBBA RAo AND J. R. MuDHOLKAR JJ.)

Contract by manager to sell joint property-Specific Performance when

nrdered-Hindu Law-Joint family.

The appellant entered into a contract with the karta for the purchase of property belonging to a joint Hindu family.

This property consisted of a fractional share belonging to the family in a large plot of land.

Earnest 1noney was paid to the karta.

As the karta did not execute the sale deed the appellant instituted a suit for specific performance. The other members who are the brothers of the k:arta and who were adults

(') A.I.R. 1962 Raj 3.

134-159 S.C.-21 (') 1959 All. L.J. 340.

Januaryt 21,

Art. 31

Art. 31

Art. 31

Orissa High Court

FADDI

THE STATE OF MADHYA PRADESH

M. HIDAYATULLAH

RAGHUBAR DAYAL JJ.

State of Mtulh7

Section 25

s. 162

Code of Criminal Procedure

s. 21

L. R. 44 I.A. 137

K. K. Luthra

I. N. Shroff

RAGHUIJAR DAYAL

s. 302

Jaibai

Faddi

Faddi

Jaibai

Guiab

Faddi Guiab

Torkheda

Raehubar Dayal

Gulab

Jarah

Morena

Nigam

Gulab

Banwari

January 20, 1963

January 20, 196'.l

Ramie

Bhanta

Shyama

Nazai Mohd. Khan

Rajender Singh

Ramie

Faddi Bhanta alias Dhanta

Shyamlal

s 1

Rathubar Dayal

19th January, 1962

Ramle

J aibai

Jimipal anel Sampatti

Bhagwan Singh

Lalla Ram

Utampur

Tork:heda

Bhatta

FaAdi Shyamlal

Gui.ab

iubar Dayal

Jabar Singh. Vakil

Chhotey Singh

R.mle

Shyamlal

Gu!ab

State of Madhya

Raghubar Dayal

Section 25

s. 162

s. 21

Section 17

Section 21

s. 21

Dal

Singh

Mohan

Jhunni

Dal Singh

Hardua

Jubbulpore

L. R. 44 I. A. 137

Kapur

s. 157

s. 145

Nisar Ali

Qudratullah

s. 21

BALMUKAND

KAMLA WA TI

K. SUBBA RAo

J. R. MuDHOLKAR

Januaryt 21,


6 S.C.R.

SUPREME COURT REPORTS 321

in State of Ra; asthan v. Shiv Singh(') and by the Allaha- . bad High Court in A/lahdia v. State( 2 ).

1!164

Faddi

We therefore hold that the objection to the admissibility 51• 1• P~!d::f1h1• of , the first information report lodged by the appellant is not - sound and that the Courts below have rightly admitted it in Raghubar Day-11. evidence and have made proper use of it.

The circumstances held established by the High Court are sufficient, in our opinion, to reach the conclusion that Guiab was murdered by the appellant who was the last person in whose company the deceased was seen alive and who knew where the dead body lay and who gave untrue explanation about his knowing it in the report lodged by him and gave no explanation in Court as to how he separated from the deceased.

We therefore dismiss the appeal.

Appeal di.rmi1sed.

BALMUKAND

KAMLA WA TI & ORS.

(K. SUBBA RAo AND J. R. MuDHOLKAR JJ.)

Contract by manager to sell joint property-Specific Performance when

nrdered-Hindu Law-Joint family.

The appellant entered into a contract with the karta for the purchase of property belonging to a joint Hindu family.

This property consisted of a fractional share belonging to the family in a large plot of land.

Earnest 1noney was paid to the karta.

As the karta did not execute the sale deed the appellant instituted a suit for specific performance. The other members who are the brothers of the k:arta and who were adults

(') A.I.R. 1962 Raj 3.

134-159 S.C.-21 (') 1959 All. L.J. 340.

Januaryt 21,

at the time of the contract were also impleaded in the suit as defendants.

The suit was resisted on the ground that there was no legal necessity and that the contract for sale was not for the benefit of the family. The trial court as well as the High Court upheld these contentions.

Before this Court it was contended that even though there was no legal necessity the transaction was for the benefit of the family which the karta as a prudent owner was entitled to enter into for the benefit of the family.

Held: (i) For a transaction to be regarded as one which is of benefit to the family it need not necessarily be only of a defensive character. but what transactions would be for the benefit of the family would depend on the facts and circumstances of each case.

In each case the Court must be 11atisficd from the material before it that it was in fact such as con ferred or was necessarily expected to confer benfit on the family at the time it was entered into.

(ti) No part of the joint family property coc, J be parted with or

eed to be parted with by the manager on the grouncl of alleged benefit to the family when the transaction is opposed by the :101Jit members of the family.

(iii) In the present case the appropriate pleas were not raised by the plaintiff nor the necessary evidence led. The granting of specific performance is always in the discretion of the court. In the facts and circumstances of the case the courts below were justified in refusing to order specific performance and the appeal is dismissed.

Jagatnarain v. Mathura Das, I.L.R. SO All. 969, Honooman Prasod Pandey v. Babooee Munraj Koonwaree, (1856) 6 Moo. I.A. 393, Sahu Ram Chandra v. Bhup Singh. l.L.R. 39 All. 437, Palaniappa Chetty v. Sreemath Daiya.rikamony Pandara Sannadhi, 44 I.A. 147, Sita/ Prasad Singh

v. Ajablal Mander, I.L.R. 18 Pat. 306 and In the matter of A. V. Va•udevan & Ors. Minors, A.I.R. 1949 Mad. 260. referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7 of 1962.

Appeal from the judgment and decree dated October 14, 1957 of the Punjab High Court in RF.A. No. 219 of 1950.

N. C. Chatterjee, H. L. Mittal, S. S. Khanduja and Ganpat Ral, for the appellant.

Ram Lubhaya and S. D. Sekhri, for respondents Nos. 1-12.

S. K. Mehta and K. L. Mehta, for respondents Nos. 13-15.

January 27, 1964. The Judgment of the Court was delivered by

MUDHOLKAR J.-This is a i; ilaintiff's appeal from the dismissal of his suit for specific i; ierformance of a contract for the sale of 3 /20th share of land in certain fields situate in Mauza Faizpur of Batala in the State of Punjab. He had instituted the suit in the court of Sub-Judge, First Class, Batala, who dismissed it in its entirety. Upon appeal the High Court of Punjab, while upholding the dismissal of the plaintiff's claim for specific performance, modified the decree of the trial court in regard to one matter. By that modification the High Court ordered the defendants to repay to the plaintiff the earnest money which he had paid when the contract of sale was entered into by him with Pindidas.

It may be mentioned that Pindidas died during the pendency of the appeal before the High Court and his legal representatives were, therefore, substituted in his place.

Agi¥ieved by the dismissal of his claim for specific performance the plaintiff has come up to this Court by a certificate granted by the High Court, under Art. 133 of the Constitution.

'The relevant facts are these:

The plaintiff owned 79/120th share in Kasra Nos. 494, 495, 496, 497, 1800/501, 1801/501 and 529 shown in the zamabandi of 1943-43, situate at Mauza Faizpur of Batala.

On October 1, 1943 he purchased 23/120th share in this land belonging to op.e Devisahai. He thus became owner of 17 /20th share in this land. The remaining 3 /20th share belongs to the joint Hindu family of which Pindidas was the Manager and his brother Haveliram, Khemchand and Satyapal were the members.

According to the plaintiff he paid Rs. 17 5 per maria for the land which he purchased from Devisahai. In order to consolidate his holding, the plaintiff desired to acquire the 3 /20th share held by the _joint family of Pindidas and his brothers. He, therefore, approached Pindidas in the matter and the latter agreed to sell the 3 /20th share belonging to the family at the rate of Rs. 250 per maria.

'The contract in this regard was entered into on October 1,

Balmukand v.

Kamlawatl

M udholkar 1.

Balmukimd

"· Kam law a ti

Mudh/J/kar J.

1945 with Pindidas and Rs. l 00 were paid to him as earnest money. As the manager of the family failed to execute the sale deed in his favour, the plaintiff instituted the suit and made Pindidas and his brothers defendants thereto.

The suit was resisted by all the defendants.

Pindidas admitted having entered into a contract of sale of some land to the plaintiff on October 1, 1945 and of having received Rs. 100 as earnest money.

According to him, however, that contract pertained not to the land in suit but to another piece of land.

He further pleaded that he had no right to enter into a contract on behalf of his brothers who are defendants. 2 to 4 to the suit and are now respondents 13 to 15 before us.

The defendants 2 to 4 denied the exltence of any contract and further pleaded that even if Piadidas was proved to be the karta of the joint family and hall agreed' to sell the land in suit the transaction was not blnding upon them because the sale was not for the benefit of the family nor was there any necessity for that sale.

The courts below have found in the plaintiff's favour that Pindidas did enter into a contract with him for the sale of 3 /20th share of the family land in suit and received Rs. 100 as earnest money.

But they held that the contract was not binding on the family because there was no nece:;- sity for the sale and the contract was not for the benefit of the family.

It is not disputed before us by Mr. N. C. Chatterjee for the plaintiff that the defendants are persons in affluent circumstances and that there was no necessity for the sale.

But according to him, the intended sale was beneficial to the family inasmuch as it was not a practical proposition for the defendants to make any use of their fractional share in the land and, therefore, by converting it into money the family stood to gain.

He further pointed out that whereas the value of the land at the date of the transaction was Rs. 175 per maria only the plaintiff had agreed under the contract to purchase it at Rs. 250 per maria the family stood to make an additional gain by the transaction.

The substance of his argument was that the Manager of 11 joint

Hindu family has power to sell the family property not only for a defensive purpose but also where circumstances are such that a prudent owner of property would alienate it for a consideration which he regards to be adequate.

In support of his contention he has placed reliancjl on three decisions.

The first of these is Jagatnarain v.

Mathura Das('). That is a decision of the Full Bench of that High Court in which the meaning and implication of the term "benefit of the estate" is used with reference to transfers made by a Manager of a joint Hindu family was considered.

The learned Judges examined a large number of decisions, including that in Hanooman Persaud Pandey

v. Babooee Munraj Koonweree( 2 ); Sahu Ram Chandra v.

Bhup Singh ( 3 ) and Palaniappa Che tty v. Sreemath Daivasi kamony Pandra Sannadhi (') and held that transactions justifiable on the principle of benefit to the estate are not limited

to thme which are of a defensive nature.

According to the High Cour< if the transaction is such as a prudent owner of property would, in the light of circumstances which were within his knowledge at that time, have entered into, though the degree of prudence required from the manager would be a little greater than that expected of a sole owner of property.

The facts of that case as found by the High Court were:

" ...... the adult managers of the family found it very inconvenient and to the prejudice of the family's interests to retain property, 18 or 19 miles away from Bijnor, to the management of which neither of them could possibly give proper attention, that they considered it to the advantage of the estate to sell that property and purchase other property more accessible with the proceeds, that they did in fact sell that property on very advantageous terms, that there is nothing to indicate that the transaction would not have reached a profitable conclu sion .... " (p. 979).

(1) I.L.R. 50 All. 969.

(') I.L.R. 39 AIL 437.

(~ (1856) 6 Moo. I.A. 393.

() 44 I.A. 147.

.1964

Mudholkar I.

Mudholkar J.

We have no doubt that for a transaction to be regarded as one which is of benefit to the family it need not necessarily be only of a defensive character. But what transaction would be for the benefit of the family must necessarily depend upon the facts of each case. In the case before the Full Bench the two managers of the family found it difficult to manage the property at all with the result, apparently, that the family was incurring losses.

To sell such property, and that too on advantageous terms, and to invest the sale proceeds in a profitable way could certainly be regarded as beneficial to the famiiy. In the present case there is unfortunately nothing in the plaint to suggest that Pindidas agreed to sell the property because he found it difficult to manage it or because he found that the family was incurring loss by retaining the property. Nor again is there anything to suggest that the idea was to invest the sale proceeds in some profitable manner.

Indeed there are no allegations in the plaint to the effect that the sale was being contemplated by any considerations of prudence. Ali that is said is that the fraction of the family's share of the land owned by the family bore a very small proportion to the land which the plaintiff held at the date of the transaction.

But that was indeed the case even before the purchase by the plaintiff of the 23/120th share from Devisahai. There is nothing to indicate that the i;>osition of the family vis-avis their share in the land had in any way been altered by reason of the circumstance that the remaining l 7 /20th interest in the land came to be owned by the plaintiff alone.

Therefore, even upon the view taken in the Allahabad case the plaintiff cannot hope to succeed in this suit.

The next case is Sita/ Prasad Singh v. Ajablal Mander(').

That was a case in which one of the questions which arose for consideration was the power of a manager to alienate part of the joint family property for the acquisition of new property. In that case also the test applied to the transaction entered into by a manager of a joint Hindu family was held to be the same, that is, whether the transaction was one into which a prudent owner would enter in the ordinary

(1) l.L.R. x8 Pat. 306.

course of management in order to benefit the estate. Following the view taken in the Allahabad case the learned Judges also held that the expression "benefit of the estate" has a wider meaning than mere compelling necessity and is not limited to transactions of a purely defensive nature. In the course of his judgment Harries C.J. observed at p. 31-l:

". . . . . . . . the karta of a joint Hindu family being merely a manager and not an absolute owner, the Hindu law has, like other systems of law, placed certain limitations upon his power to alienate property which is owned by the joint family. The Hindu law-givers, however, could not have intended to impose any such restriction on his power as would virtually disqualify him from doing anything to improve the conditions of the family. The only reasonable limitation which can be imposed on the karta is that he mu_st act with prudence, and prudence implies caution as well as foresight and excludes hasty, reckless and arbitrary conduct."

After observing that the transaction entered into by a manager should not be of a speculative nature the learned Chief Justice observed:

"In exceptional circ:umstances, however, the court will uphold the alienation of a part of the joint family property by a karta for the acquisition of new property as, for example, where all the adult members of the joint family with the knowledge available to them and possessing all the necess<_try information about the means and requirements of the family are convinced that the proposed purchase of the new property is for the benefit of the estate."

These observations make it clear that where adult members are in existence the judgment is to be not that of the manager of the family alone but that of all the adult members of the family, including the manager. In the case before us all the brothers of Pindidas were adults when the

Balmuka111/

•• Kamlawldl

Mudho/k., I.

•• Kam/awati

M wlholkar J.

contract was entered into. There is no suggestion that they agreed to the transaction or were consulted about it or even knew of the transaction. Even, therefore, if we hold that the view expressed by the learned Chief Justice is right it does not help the plaintiff because the facts here are different from those contemplated by the learned Chief Justice.

The other Judge who was a party to that decision, Mano:b.arlal J., took more or less the same view.

The third case relied on is In the matter of A .T. V asudevan & Ors., minors('). There a single Judge of the High Court held that the manager of joint Hindu family is competent to alienate joint family property if it is clearly beneficial to the estate even though there is no legal necessity justifying the transaction.

This view was expressed while dealing with an. application under cl. 17 of Letters Patent

by one Thiruvengada Mudaliar for being appointed guardian of the joint family property belonging to, inter alia, to his five minor sons and for sanction of the sale of that property as being beneficial to the interests of the minor sons.

The petitioner who was karta of the family had, besides the five minor sons, two adult sons, his wife and unmarried daughter who had rights of maintenance. It was thus in connection with his application lhat the learned Judge considered the matter and from that point of view the decision is distinguishable.

However, it is a fact that the learned Judge has clearly expressed the opinion that the manager has power to sell joint family property if he is satisfied that the transaction would be for the benefit of the family. In coming to this conclusion he has based himself mainly upon the view taken by Venkata Subba Rao J., in Sellappa v.

Suppan(2). That was a case in which the question which arose for consideration was whether borrowing money on the mortgage of joint family property for the purchase of a house could be held to be binding on the family because the transaction was of benefit to the family. While holding that a transaction to be for the benefit of the family need not be of a defensive character the learned Judges, upon the evidence before them, held that this particular transac-

(') A.I.R. 1949 Mad. >6o. (') A.I.R. 1937 Mad. 496.

tion was not established by evidence to be one for the benefit of the family.

Thus, as we have already stated, that for a transaction to be regarded as of benefit to the family it need not be of defensive character so as to be binding on the family. In each case the court must be satisfied from the material before it that it was in fact such as conferred or was reasonably expected to confer benefit on the family at the time it was enered into.

We have pointed out that there is not even an allegation in the plaint that the transaction was such as was regarded as beneficial to the family when it was entered into by Pindidas. Apart from that we have the fact that here the adult members of the family have stoutly resisted the plaintiff's claim for specific performance and we have no doubt that they would not have done so if they were. satisfied that the transaction was of benefit to the family. It may be possible that the land which was intended to be sold had risen in value by the time the present suit was instituted and that is why the other members of the family are contesting the plaintiff's claim. Apart from that the adult members of the family are well within their rights in saying that no part of the family property could be parted with or agreed to be parted with by the manager on the ground of alleged benefit to the family without consulting them. Here, as already stated, there is no allegation of any such consultation.

In these circumstances we must hold that the courts below were right in dismissing the suit for specific performance. We may add that granting specific performance is always in the discretion of the court and in our view in a case of this kind the court would be exercising its discretion right by refusing specific performance.

No doubt Pindidas himself was bound by the contract which he has entered into and the plaintiff would have been entitled to the benefit of s. 15 of the Specific Relief Act which runs thus:

"Where a party to a contract is unable to perform the whole of his part of it, and the part which

Balmukand v.

Kamlawati

Mudholkar J.

Balmukand must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the court may, at the suit of the other party, direct the party in default to perform specifi. cally so much of his part of the contract as he can perform, provided that the plaintiff relinquishes all claim to further performance, and all right to compensation either for the defici ency, or for the loss or damage sustained by him through the default of the defendant."

MudholklJI' J.

January, 27

However, in the case before us there is no claim on behalf ot the plaintiff that he is willing to pay the entire considera tion for obtaining a decree against the interest of Pindidas alone in the property. In the result the appeal fails and is dismissed with costs.

Appeal dismissed.

C. S. ROWJEE AND OTHERS

ANDHRA

PRADESH STATE ROAD TRANSPORT

CORPORATION

(B. P. SINHA, C.J., K. SUBBA RAo, RAGHUBAR DAYAL, N.

R.AJAGOPALA AYYANGAR AND J. R. MUDHOLKAR JI.)

Motor Vehicles-Nationalisation of road transport 1ervice-Pree.aration

and enforcement of scheme-Validity-Issue of permits fo State Transport Undertakings-Motor Vehicles Act, 1939 (4 of 1939), "' amended by Act I of 1956, Ch. IV, ss. 68C, 68D(3), 68F(l)- Andhra Pradesh Motor Vehicles Rules, 1957, rr 4, 141.

The respondent corporation appointed an expert committee to go into the question as to the working of nationalised ~nsport in the S_tate. i:ie Committee laid down the criteria for determining the order 1n which

Guiab

BALMUKAND

KAMLA WA TI & ORS

K. SUBBA RAo

R. MuDHOLKAR JJ.

CIVIL APPELLATE JURISDICTION

N. C. Chatterjee

H. L. Mittal

S. S. Khanduja

Ganpat Ral

Ram Lubhaya

S. D. Sekhri

S. K. Mehta

K. L. Mehta

MUDHOLKAR

Batala

Sub-Judge, First Class, Batala

High Court of Punjab

Pindidas

Art. 133

October 1, 1943

Haveliram

Khemchand

Satyapal

Devisahai

Balmukimd

October 1, 1945

Piadidas

N. C. Chatterjee

Bijnor

Mudholkar

Allahabad

Harries

Mano:b.arlal

cl. 17

Thiruvengada Mudaliar

Venkata Subba Rao

s. 15

Specific Relief Act

Balmukand

MudholklJI

C. S. ROWJEE

B. P. SINHA

RAGHUBAR DAYAL

R.AJAGOPALA AYYANGAR

J. R. MUDHOLKAR

ss. 68C, 68D(3), 68F(l)