SHRIPAD GAJANAN $UTHANKAR ..

DATTARAM KASH!NATH SUTHANKAR AND ORS.

March I, 1974 . [D. o: PALEKAR, P. N. BHAGWATI AND v. R. KRISHNA !YER, JJ.J

Hindu Law-Prior to Hindu SuCl't>ssio11 Act, 1956--Dearh of Copal'cener leaving it'idolf-Partition among other r:oparceners /ater~AdoptiolJ by widow- Share of

adoPld son ill -coparcenary properly. - M: ha, d two sons-the first defedant and K.

K died in 1921 leaving a widow nd a daughter.'' In-1944 there was'a partition between Mand the first defendant, and, in that partition, allotment (or residence and :i; naintenance of K's widow was made.

Thereafter, M 8ifted away his share, which he got in partition, to Uie first defendant's

son. the second defendant (appeUant). In 1956, before the HinOu Succession Act came into force, the widow of K adopted her daughter's son (respondent) and he filed the suit for a fresh partition claiming a half share of the entire property ignoring the earlier partition and gift. ' On the question of the rights and shares of the parties, HELD : (l) The firiding of the High Court that the adoption of the respondent was te and valid, both .from the ngles of custom and_ factun1, is established by

te evidence. f476FJ ··

(2) (a) Under. the Mitakshara School of Hindu Law a widow's adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when 'e adOptive father breathed his last. [48SE]

(b) Nevertheless the fact um of partition .is not wiped out by the later adoption. [48SE-Fj

(c) Any disposition, testamentary or inter rfl'os, lawfully made ; uitecedent to

1he adoption is immune to challenge by the adopted son; l485FJ )!;

(d) Lswful alienation, in this context; rnea::is not necessarily for a family neces sity but .alienation made competently in accordance with law. [485FG]

(e) A widow's power of alienation is limited, and if only if the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son.

So also the alienation by the Karta of an undivided family or transfer by a copar cener governed by the Banaras School of Hindu Law; [485F-G]

(f) Once partitioned validly, the share of a me1nber of a Mitakshara Hilidu F family in which his own issue have no right b}' birth, can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene. [48.~GH]

(3) In computing the net available property for g:iving a share to the respondent, the property gifted by M to the second defendant has to be excluded while the allotment for nlaintenance will have to be brought into the corpus. But, in calculating his share the adopted son's right, arising long after other proprictai'y events. should be worked out, not rigidly but justly. If the respondent is given his 1/3 share as at G the time when the partition took place; since M's share, which had been f_iftcd away, -should be ignored, the respondent will get his 1/3 share of the entire family property

from out of the 112 share of the first defendant got by him at the 194+partition.

But jt would be uiifair to the first defendant 10 deprive him of such a large share n1erely because he had not parted with his properties before the rcspondcnf:i adop tioa. Equally, it would be unjust to _the re<; p~ent if he !8 given only 1/3 of the prop!rties given to the 1st dfendant and rema1n1ng .with bun at the date of ado~ t!on. Th!refore, it would be emine.ntly just t~ divie the properties got by. the .first defendant at the 1944-partition, wJuch were with him at the date of adopbon, toto H two eqal shares and award one share to the plaintiff-respondent. Hence, a dcci:cc should be passed (i) allowing the respondent an half share out of such P:ropcrties allotted to the fi; st defendant !-'oder the 19.W.partitio!l as wei:e with the fust dfen dant at the date of adoption, including, therein, the umcs set apart for the .ma1nte

nance of the adoptive mother; (ii) directing profits to be paid to the plaintiff on that basis; and (iii) dh'ecting the tion of payment of maintenance by the first def en danfs branch to the adoptive mother . .f479AE; 485H-486G]

Govind v. Nagappa, [19i2] 3 SCR 200, P. Ammal v. Rama/ingam, [1970] 3 SCR, 894, Sriniva.r [1955), I S.C.R. 1;17; 24-45; Krishna Murtlii, [1962] 2 S.C.R. 813, Bhimjl Krishna Rai, [1950) 52 B.L.R., 290, in Bijoor v. Padmanabh (9) l.L.R.' [1950)

Born. 480, Krishtappa v. Gopal, A.l.R. 1957 Born. 214, 215, Ba/a}i, (1944) 47 B.L.R. 121, Sankaralingam. I.L.R. (1943) Mad.,309 and Somesekharappa v. Basappa Chan. naba.rappa, (1960) Mys. L. J. 687, referied to. -; ,

QVJL APPELLATE JURISDICTION : Civil Apeal No. 1264 of 1967.

Appeal from the Judgment and Decree dated the 8th April 1964 of the Mysore High Court at Bangalore in Regular Appeal No. JOO of!958.

S. V. Gupte and R. B. Datar for the appellant

S. S. Jav4/i and H. K. Puri, , for respondent No.

The Judgment of the Court was delivered by

KtusHNA IYER, J. An intricate point of Hindu Law bearing on an adoption by a widow and its impact on an earlier partition in the coparcenary-all prior to the Hindu Succession Act, 1956-arise for decision in this appeal by certificate against the decree of the Mysore (now Karnataka) High Court. The plaintiff succeeded in both the Courts and the aggrieved second defendant, who is the appellant oofore us, has confined his challenge to two major contentions, E although a few minor matters also require our attention in working out the ultimate . relief.

Now the facts. A small family of Gowd Saraswat Brahmi1B of Balgaum had, as its head, one Mahadev and as coparceners his two sons, Gajanand (Defendant No. 1) and Kashi Nath, who died in 1921 leaving behind a widow, Rakhama Bai (Defendant No. 3), and a daughter Lilawatr. The plaintiff is Lilawati's son, i.e., the daughter's rnn of late Kashi Nath. Gajanand, the first defendant had an only son, Shripad, the second defendant. Long years after the demise of her husband, the third defendant adopted the plaintiff on February, 16,

1956. In the considerable interval that elapsed, a partition took place in the family on April 24, 1944 between the then two living copar ceners, namely, Mahadev and the first defendant. The former passed away in 1946 but before his death he gifted his entire share in the joint family derived under the partition of 1944 to the second defendant.

For completeness sake it must be mentioned that at the partition in 1944, an allotment for the residence and maintenance of the third defendant had been made. The second defendant, the donee from Mahadev, alienated some of those properties but the alienees are not parties to the present appeal although they were defendants to the litigation. The adopted son, i.e., the plaintiff, filed the present suit on April 20, 1956 ignoring the partition of 1944 and praying for fresh partition by metes and bounds of his half share. His case was that the gift was invalid like the partition and that was entitled to

an equal share with the first defendant tog, ther with profits attributable to his share. The contesting defendant was the second defendant who challenged the factum and validity of the adoption and also the right of the adopted son to re-open the partition or impugn the gift effected prior to the adoption. Other contentions had bcen;, raised which need not be noticed now. ·

The Triaf Court granted a decree more or. less as prayed for up holding the factum and validity of the adoption and the right of the plaintiff to re-open the partition and ignore the gift. The decree declared that the plaintiff'was entitled to I/3rd share, the.first defendant , to a I/6th share, he second defendant to a half share, and so on.

Profits that fell to the share of the plaintiff were also decreed. , The liab; lity of defendants 1 and 2 to pay maintenance to the third defendant under the partition deed of 1944 was to cease from the date of the suit. The High Court in appeal upheld the adoption and the right of the plaintiff to re-open the partition. Certain minor modifications were made which will be referred t(), to the extent necessary, later.

Shri Gupte, appearing for the appellant (second defendant) has taken us through the evidence regarding the custom .of adopting the daughter's sdn by the widow, and argued that as a source of law-- undoubtedly, custom is a source of Hindu lawr-there was not sufli,, cient material to hold on the triune. aSPects of antiquity, adequacy and continuity. He urged that the adoption was, therefore, inv_alid even though there was concurrence in the conclusions of the courts below. He did not seriously argue on the factum of the adoption, and evenofhetwise this is a finding of fact rendered.by , the couTts b.; Jow \\1hich \Ve are not disposed to re-examine.

Counsel for the first respondent; Shri Javali, took ui through the.

High Court's discussion of the evidence bearing on custom. and we are satisfied that there is ample justification for the finding reached that the adoption of the plaintiff is true and valid, both from the angl!s of custom and factum.

It is established law that the adoption by a wiow relates back to \he date of the death of the adoptive father, which; in this case, took place in 1921. Indeed.the complexity of the present case arises from the application of this. legal fiction of "relation-back" and the limitations on the amplitudp of that fiction iis a. ris the partition of 1944. in the light of the rulings 'of the various High Courts and of the Judicial Committee of the Privy Council, and of this Court, the last of which is Gorind v. Nagappa.('l According t~ t. he appellant, the rights of the adopted son, armed as he is with the theory of "relation-back", have to be effectuated retro-actively, the guidelines wherefor are available from the decided cases. It is no doubt true that "when a member of a joint family governed by Mitakshara law dies and the widow validly adopts a son to him, a coparcenary interest in the joint property is im1nediately created by the adoption co-extensive Viith that \Vhich

(!) [t972] .' S.C.R. 200.

the deceased coparcener had, and it vests at once in the adopted son•. (see Mulla on Hindu Law, 13th edn. page 516). The same author, - however, points out that "the rights of an adopted &On arise for the first time on his adoption. He may, by virtue of his rights as adopted son, divest other persons in whom the property vested after the death of the adoptive father, but all lawful alienations made by previous holder would be binding on him. His right to impeach previous alienations would dtpend up<ln the capacity of the holder who made the alienation as well as on the nature of the action of alienation.

When the holder was a male, who had unfettered right of transfer, e.g., the last surviving member of a joint family, the adopted son could not impeach the transfer. In case of females who had restricted right of transfer even apart from any adoption, the transfers would be valid only when they are supported by legal necessity." (ibid; pp; 516-517; para 507). "An adopte<i son is bOund by alienations made by his adoptive father prior to the adoption to the same extent as a naturalbom son would be." (Ibid; p.517; para 508).

It is settled law that rights of an adopted son spring into existence only from the mqment of the adoption and all alienations made by the widow before the adoption, if they are made for legal necessity or otherwise lawfully, such as with the consent of the next reversioners, are binding on the adopted son. The narrow but important question that arises here is as to whether the adoption made in 1956 can upset the partition of 1944, validly made under the then conditions, and whether the gift by Mahadev of properties exclusively set apart to him, and, therefore, alienable by him, could be retro-actively invalidated by the plaintiff on the application of the legal fiction of "/elation-back". It is unlikely that a similar question will arise hereafter since s. 4 of the Hindu Succession Act, 1956 has practically swept off texts, rules and the like in Hindu Law, which were part of ' that law in force immediately before the commencement of the Act, if provisions have been made for such matters in the Act. Since on the husband's death the widow takes an absolute estate, questions of the type which engage us in this appeal will be stilled for ever, Of course, we. need not investigate this aspect of the matter as the present case relates to a pre-statutory adoption. Even s. 12 of the Hindu Adoptions and Maintenance Act, 1956, makes it plain that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption.

We may now proceed to consider the contention of Mr. Gupte that the adopted son cannot challenge the partition and the gift,

The plaintiff, as the adopted son, for secular and spiritual purposes continues _the line, of the adoptive father and when the widow adopts, the doctnne of relation-back' makes sonship retro-active from the moment of death of the late husband. The new entrant is deemed to have been born on the date of death of the adoptive father. Supposrng there was an undivided family in existence when the adc.ptive

father died, how far can the legal fiction of anterior sonship disrupt the doings between notional birth and actual adoption? Mulla sums up the result of the rulings thus : (p. 496).

"If, therefore, there was a coparcenary in existence when 1he adoptive father died, then whether it came to an end by the death of the last surviving coparcener or by subsequent partition :-:.:nong the re1naining members, an adoption vaJidly made by the widow of the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the last surviving coparcener in the first case and of putting an end to the partition in the second and enabling the adopted son to claim a share in lhe family properties as if they were still joint."

This means that at the partition of 1944 although as a physical fact only Mahadev and defendant No. 1 were alive .. the , plaintiff :must be deemed to have been alive. The division ha, d denied a share to him while he was eligible, in the eye of law, to a share. There were thus three co-parceners and tbe plaintiff was entitled to a third out of the estate of the joint family as it then existed. Illustration (a) at page 497 of Mulla, based on Surendra Na11da11(') is apt and reads :

"A and B are un.divided brothers governed by the Mitakshara law.

A dies leaving authority to his widow to adopt a son i<' him. On A's dealh his undivided half share in the coparcenary property passes to B, the surviving coparcener. While B is still s!ive, A's widow adopts a son to A. The effect of the adoption is that a coparcenary interest is created in the joint property coextensive with that which A has in the property (that is, onehalf), and it vests in the adopted son."

The plaintiff's claim for a share is thus well-founded-not half, which is tall but one-third which fits the fiction as in 1944.

Two crucial questions then arise. One-third share out of what?

Should the gift by Mahadev of what was under the then circumstances his .e~:clusive prop.rty be ignored in working out the one-third share?

Two principles compete in this jurisdiction and judges have struck a fair balance bet\veen the two, animated by a sense of realisn1, impelled by desire to do equity and to avoid unsettling vested rights and conciuded transactions, lest a legal fiction should by invading actual facts of life become an instrumentality of instability. Law and order are jarisprudential twins and this pmpective has inarticulately informed judicial pronouncements in this branch of Hindu Jaw.

In short, the principle of relating the birth of the adopted son to the last day of the adoptive father's life is put in peaceful oo-existence with recogni1ion of rights lawfully vested on the basis of the realities then exis1ing. The law frowns on divesting vested rights and keepiPg in cold storage or suspended anin1ation normal legal events like competent transfers and collateral succession, except when co1npelled by jural mandate. So viewed, the partition of 1944 was valid; so also the gift

(I) (IS9t) 18 Cal. 385.

of his exclusive share by Mahadev, to Shripad, Defendant No. 2. The plaintiff could reopen the partition only to the limited extent rights flowing from these two facts viz. disruption of jointnern and alienation by one share permitted. Nor is law inhuman or inequitable or abstract, its essence being social engineering. Therefore, .the humane endeavour to work out equities in a given case has engaged the conscienee of judges in the reported rulings. Here, the circumstance that the whole share of Mahadev has g>ne out of the corpus of the coparcenary on account of the gift inflicts an injustice on the plaintiff if he is to get only one-third of the properties which were allotted to Gajanan whose branch still remained in tact; equally unjust it would be on Gajanan if out of his allotment the plaintiff were to slice off what is equal to one half of the total assets as at the time of partition in 1944 nerely because of the misfortune that he had still kept it as the asset of his branch at the time of the adoption. Equitable considerations would suggest a modification. When the adoption was made there were only two coparceners and the corpus available only Gajanan's properties. So a half share out of those items may be fair, in the totality of circumstances. Maintenance to the mother and profits due to the plaintiff are minor matters and will be gone into hst.

The broad approach made and the general conclucions reached above do fit into the conspectus of judge-made law, as we will presently discuss. May be, a flash-back method of reference to the case law will be more effective, and that way the recent decision in Govind v.

Nagappa(I) clears the ground a great deal. Hegde, J., speaking for the Court. drew the lines clearly in the situation of confrontation between the fiction of relation-back and the fact of partition, in a way analogous to our case .. In asking for a share the adopted son could overlook the prior division but in pushing the fiction to its plenary c:xtrerne of nullifying the partition so as i o re-unite a divided family, the Court cried halt. The learned Judge observed :

"It is true that by a fiction of law-well settled by decid<d cases-that an adopted son is deemed to have been adopted on the date of the death of his adoptive father. He is the continuator of his adoptive father's line exactly as an aurasa son and an adoption, so far as the continuity of the line is concerned, has a retrospective effect. • • • Consequently he is dee1nea to have been a copatcener in h; s adoptive father's family when Krishna Rao and Lakshmana Rao partitioned the properties. The partition having been effected without his consent, it is not binding on him. But from this it does not follow that Krishna Rao and Lakshmana Rao did not separate from the family at the time of the partition.

It was open to Krishna Rao and Lakshmana Rao to separate

thmselves from the family. Once they did separate the appel· ]ant and his adoptive mother alone must be deemd to hav<' continued as the members of the family. • • •

When the partition took place in 1933, the appellant even A if he was a coparcener on that day could have only got I/3rd share.. We fail to see how his position can be said to have im

proved .J!lerely b!:cause he was adopted subsequent to the date of part11Ion. It 1s true that because he was not a p!rty to the partition, he is entitled to ask for reopening of the partition and have his sl)are work<d out without reference to that partition.

• • • The doctrine ofrelation back is only a legal fiction. There is no justification to logically extend that fiction. Jn fact the plaintiff had nothing to do with his adoptive father's family when Krishna Rao died.

• • • The devolution of Krishna Rao's property must be held to have taken place at the very moment Krishna Rao died. We know of no legal fiction under which it can be said to have been in a suspended animation till the plaintiff was adopted .

• • •

We see no basis for the contention of the appellant that he can ignore the events that took place in 1933. He can no doubt ignore the actual 'I partition by metes and bounds effect<d by Krishna Rao and. Lakshmana Rao and ask for a repartition of the properties. but his adoption by it£elf does not and cannot re-unite the divided family. It is one thing to say that an adopted son can ignore a partition effected prior to his adoption, which effects his rights and it is a different thing to say that his adoption wipes out the division of status that had taken place in his family.

• •

Further the interest of the society is not advanced by engrafting one more fiction to the already existing fiction that an adopted son is deemed to have been born on the date of death of his adoptive father. Acceptance of the new fiction canvassed on behalf of the plaintiff is bound to cteate various complications.

Hindu widows in tl!e past were proverbially long lived because of the child marriage system. Adoptions might take place and have taken place more than half a century after the death of the adoptive father. Meanwhile the other coparceners might have dealt with the family property on the basis of the then existillg righ11. They might have alienated the property. We see no justification to create chaos by inventing a new fiction unknown to Hindu law texts nor auth<>rised by stare decisis. • • • But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheri tance once vested cannot be divested."

I s .. G. SUTHANltAR v. DATTARAM (Krishna lytr, /.) 481

By parity of reasoning we have to give the plaintiff a one-third share, which alone even an aurasa son of late Kashinath would have got stirpitally. To undo the divided status and continue the CO parcenary till the date of the suit so as to award a half share t~ the plaintiff as representing one of the two surviving branches would be legal fiction run riot. Neither principle nor precedent compels that courie.

We now sail into still more troubled waters. Where is this share to come from 1 From the coparcenary property, less what ha• legi timately gone out of it. If the widow of a deceased coparcener had alienated for binding necessity, such. property has to be excludedaltbough a strict projection of the fiction would mean that the adopted son was alive at the time succession opened and the widow could not have the right to even a limited estate and a fortiori could not competently alienate for necessity or otherwise. Liberties with the legal fiction have been taken in this and other aspects of the "relation back" theory. If a property has validly gone out of the hotch-potch the adopted son cannot recall it. The fact of partition cannot be d, rowned by the subsequent adoption because when it was entered into there was no legal impediment in doing it. Likewise, if a manager or widow alienates for binding necessity the constructive ante-dated nativity of the adopted son cannot nullify what has taken place before he in actuality entered the coparcenary. By the same token, a sole surviving coparcener (except perhaps in the Banaras School where unlike in other schools he has no independent power of transferring his share) may dispose of the estate before adoption by a de.ceased coparcener's widow and that act defeats the claim of a later adoptee. Such is the inexorable operation of time and circumstance on long later adopliom and their proprietary fall-out. You cannot put the clock back beyond a certain stage. We may express the view that some observations, clearly obiter, in P. Amma/ v. Ramalingam,(1) relied on by Shri Javali for the 1st respondent are wider than justified. Legal fictions have legal frontiers. In Srinivas(2), Venkatarama Iyer, J., after refer ring to the relevant books and cases, cautioned against the application of the defeasance right of the adopted son to cases of collateral succession opening before adoption. "The law was thus well settled that. when succession to the properties of a person other than an adoptiw father was involved, the principle applicable was not the rule of relation back but the rule that inheritance once vested could not be divested." The learned Judge, expressing some di, sent from Anant Bhikappa(l), stated the proposition thus :

"When an adoption is made by a widow of either a copar cener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that lienations made prior t<> the

{I) [19701 3 S.C.R. 894.

(2) 119SSJ I S.C.R. 1;17;24-25

(J) 7J I.A. 2l2.

date of adoption are binding on him, if they wrre for purposes binding on the estate. Thus, transferees from limited owners, whether they be widows or coparceners in a joint family, are amply protected. But 110 such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must bHo extinguish that .title and that of all persons claiming under him. The aliertees from him would have no protection, as there could be no question of supporting the alienations on the ground of necessity or .benefit. And .if the adoption takes place long after the succession to t.he collateral had opened-in this case it was 41 years thereafter-and the prorty might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. We must hesitate to subscribe to a view of the law which leads to consequences so inconvenient.. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should not be extended so as to lead to unjust I';!SUltS."

This Court, in KrishnamurtM's (t) case, also considered the amplitude of end embankments on the "relation back" stream of adoption by a wido\v. Bu't there one basic fact deserves attention. The adopted sons's claim was as heir to his grandfather whose property devolved, on death, on his daughters, the adoptive father having died long before , the grandfather and the adoption having taken place Jong after the grandfather's death. The Court took the view that the daughters 1.who took as heirs did so on a defeasible title. For one thing, there was no coparcener alive and no joint family-either as a whole or even a. branch thereof - at the time of the adoption and the adopted son dISplaced those who got title only in the absence of a son. Secondly, inheritance stands on a differtnt footing from alienation-or, at any rate, the erosion of the relation back doctrine has not affected claiming

bak from direct heirs. (The adopted son'.s claim to diV('St collateral he!fs has been negatived in Srinivasa.(2) Krislmamurthi's(t) crucial ratio, giving it full scope, is that property inherited absolutely but subject to defeasance, fails when the divesting even occurs, and the character of the property do" not change from coparcenary property to solf-acquired property' so long as the possibility of defeasance by_ a widow of the last coparconer, by adding a member by adoption, ex.1sts.

In the present case, by parity of reasoning, the properties which came to Gajanan's share (Defendant No. 1) must remain vulnerable to the claims of the potential coparcener projected into the family by the widow's adoption. But this case does not deal with

nd cannot govern valid alienations which have effectually changed its character as family property. In Bhimji Krishna Rao(') Chagla, C. J., speaking for himslf, and Gajendragadkar, J., (as he than was) affirmed this position.

We may usefully extract the headnote here :

(2) [19551 1 S.C.R. 1,17, 24-25.

(JJ [1950] 52 B.L.R. 290.

"A Joint Hindu family consisted of the sole surviving coparcener and the widow of a deceased coparcener. The surviving coparcener made alienations of portions of the family property. Subsequently, the widow adopted a son.

The son having sued to set acide the alienations:-

Held, that at the dates of the alienations the coparcener had full right to treat the family property as if it was his own property. and that the adoption which was subsequent to the alienations could not affect the property which was already disposed of by the coparcener as a person who acted as the full owner of the property.

Jn considering whether a particular alienation made of joint family property prior to the date of adoption is. or is not a lawful alienation, the alienation must be lawful, n<>t in relation to the rights of the adopted son, but it must be lawfl at the date when the alienation was made. If it is lawful, 1t cannot be questioned or challenged by the adopted son whose ado;>tion is sub5'qucnt to the alienation."

The Court relied on the observations of the Privy Council in Krishnumurthi Ayyar v. Krishnamurthy Ayyar (1) and quoted the following passage which illumines the principle :

"When a disposition is made intr(i vivas by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subse quently adopted can affect that portion which is disposed of.

The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt. For the will speaks as at the death of the testator, and the pr<>p>rty is carried away before the adoption takes place."

Thus, alienations by a sole coparcener or testamentary dispositions by him are beyond assail by a subsequently adopted son. This propl5ition was affirmed in a slightly later decision by the same strong bench in Bijoor vs. Padmanabh(2). The headnote sufficiently sums up the law thus :

"The doctrine of relation back under which a son adopttd by a Hindu widow is decmtd to have been in existence in the adoptive family at the death of the adoptive father cannot be accept<d in its entirety. It is a doctrine with certain definite limitations and exceptions, and one of the important limitations and exceptions is that the adopted son is bound by all the lawful alienations made by his adoptive father if he was the wle surviving coparcener of a joint family. In this behalf there is no difference in principle between an alienation inter vfros and a disposition made by a will." -----·----- (!) 54

I.A. 248.

~2) l.L.R. [1950) Born. 480.

A full bench of the Bombay High Court had occasion to touch on a similar issue arising before us although the case was :eventually decided on the equities of the situation. We may extract the observations in this case (Krishtappa v. Gopal) (I) as, in a way, they reinforce our view : ·

 "It is possible to take the view that the position of !he members of the divided family is in law the same as that of a sole surviving coparccner. Just as the sole surviving coplicener has every right and authority to disp)se of the prop, rty as if it was of his absolute ownership, so also after putition the members of the erstwhile coparcenary have equally the right of dispvsing of the share which came to them on p1rtition as if it was their prop, rty."

Dealing with a fair working out of rights the Court made observations relevant for us at a later stage of this case. Chagla, C. J., observed in that context :

"Whenever a partition is re-opened, shares must be allocated on a fair and equitable principle, and what was uppermost in the minds of these two learned Judges was that, in giving to the adopted son his proper .share, no injustice should be done to any coparcener and the adopted son should get his own fair share .

• • •

As Mr. Justice Bavdekar himself observes in the judgment

at page 257 ; "It is really a question of equity ; and if the judg- E ment proceeds on a question of equity, we entirely agree with the two learned judges that equity could only be done provided the basis adopted is the basis suggested by these two learned Judges in their judgment. We, therefore, do not look upon this judgment as in any way impairing the principle which was laid down by this Court in 52 Born LR 290 : (AIR 1950 Born 271).

This is not a case of interfering with the right of a divided F coparcener to deal with his share as his own ; nor is this a case of irnpJtiring the principle accepted by this Court over a lorg • period that an adopted son is bound by all lawful alienations made prior to the adoption. But we look upJn this case as a simple case of doing equities on the re-opening of a partition in order that the property should be re-divided on a fair and equitable basis." G

Shri Javali pressed before us that Ba/aji's(2) ca•e was a closer parallel to our case, forgotting that as Chagla, C. J., explained in Bhimji (Supra) that Lokur, J. decided that case on the footing that a partition was not an alienation and the conclusion would have been different had he treated a partition as a transfer. But now, this Court has laid down that a post-partition adoption cannot re-unite the family even H though it may not deprive him of a share so long as some cop1rcenary

(I) A.l.R. 1957 Born. 214, 215.

(2) (1944) 47 B.L.R. 121.

A prop!rty existed. The Full Bench case in Sankara/ingam(I) also does not militate ag1inst the Bombay view. Leach, C. J., in the course of the judg nent, observed :

"If the law recog'liz.es in an. adopted son of a deceased coparcener the right to share in the estate as it existed before • tlie p1rtition, property which has not been lawfully alienated in the B meantime is still within his reach." (emphasis supplied).

Mysore also has fallen in line with this strand of thought. In Som<- sekharappa v. Basappa Channabasappa(?-) a Bench of that Court laid down th! Jaw condensed in the headnote thus

'.'A son adopted by a widow of a deceased coparcener cannot claim the joint family property in the hands of a transferee from the heir of the last surviving coparcencr, even though the transfer took place before the adoption. The doctrine of relation back will not extend to a case where a transfer has already been made either by the sole survivin~ coparcener or by his heir. The principle is that when a disposition is made inter

vivos by one who has full power over property under which a portion of that property is carried away, no rights of a son who is subsequently adopted can affect that.portion which is disposedc"

True, the decision under appeal before us also is from Mysore and takes the opposite view.

We reach the end of the journey of precedents, ignoring as inessential other citations. The balance sheet is clear. The propositions that emerge arc that : (i) A widow's adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive fathe.r breathed his last ; (ii) Never-the-Jess, the factum of partition is not wiped out by the later adoption ; (iii) Any disposition testamentary or

inter vivos, lawfully made antecedent to the adoption is immune to challenge by the adopted son; (iv) Lawful alienation, in this context, means not necessarily for a family necessity but alienation made comp!tcntly in accordanile with law ; (v) A widow's power of alienation is limited and.if-and _onlY, ifTl!te conditions set by the Hindu Law are fulfilled wtll the alienation bmd a subsequently adopted son. So also alienation by the Karta of an undivided Hindu flimily or transfer by a coparcener governed !>Y the Banaras school ; (vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue have .. no right by birth can be transfcrred•by him at his will and such transfers, be they by will, gift or sale, bind the adopted SQn.who comes later on the scene. Of course, the position of a void or voidable tra!\Sfe.r by s.uch a. sharer may stand oil a separate footing )>ut we need not investigate 1t here. ·

Applying the above formulations to the present facts, the concliision is clear. The plaintiff will be eligible to get one-third of the available joint family property. In computing net property the gift by Mahadev

(I) I.LR. (19431 Mad. 309.

(2) (1960) Mys. L.J. 687.

to the 2nd defendant has to be excluded. But the allotment for maintenance of the 3rd defendant will have to be ignored, brought into the corpus and, in the division by metes and bounds allotted to the share of the plaintiff.

One more problem, rather ticklish, remains-the equitable effectuation of the partition. The Full Bench decision of the Bombay High -Court in Krishtappa (Supra) emphasized that the adopted son's right, arising long after other proprietary events, should be worked out, not rigidly but jstly. Chagla1 C. J., laid do.yn the guidelines .alread.y extracted while deahng with the case earlier. We agree, with this sensitive approach and proceed to adopt it here. The plaintiff has to be given his one-third share as in 1944, when the partition took place.

Assuming that the entire estate was then worth 3 lakbs, the adopted son would have got a lakh of rupees, say. But Mahadev's share has been entirely gifted away and must be ignored. Which means that the plaintiff's one-third share valued at one lakh will have to come out .of Gajanan's properties which, on our arithmetical assumption, would be one-half of three lakhs, i.e. l t lakhs. It would be unfair to deprive Gajanan of a lion's share out of his allotment merely because, before adoption, he had n\)t parted with his properties. It would be eminently just to make the first defendant bear only one-half the burden .cast by the notional re-entry of the plaintiff into the coparcenary and we direct a division into two equal shares of such of the properties which fell to the first defendant's share in the 1944 partition as were with the first defendant at the date of adoption, and award one share to the plaintiff. The justice and equity of the situation, not any in- .flexible legal principle, prompts this course. We confess that the prer.tatutory Jaw of adoption, in its conflict between fiction and fact, has .had a zigzag course in courts and we have read the diverse 'dicta imbued by the Holmseian thought that the life of the law is not logic hut exprience.

We are informed that the first defendant is now no more and rival claims to his inheritance. are being 'agitated in some other litigation.

We do not take note of it in this decree. Nor do we think it necessary to direct inter se partition between the first and the second defendants as was done in the courts below. In substantial allowance of the appeal, we direct that a decree be passed (a) allowing the palintiff a half share out cf such of the properties allotted to the original first defendant under tho J944 partition as . were with the first dofendant at the date of adoption, including among the items to be divided the item set apart for the maintenance of defendant No. 3 ; (b) directing profits to be paid to the plaintiff on the basis of the one-half share of the divisible assets ; and (c) directing the cessation of maintenance to be payable by the first defendant's branch to the 3rd defendant. Parties to boar their costs throughout.

V.P.S.

SHRIPAD GAJANAN $UTHANKAR

DATTARAM KASH!NATH SUTHANKAR AND ORS

D. o: PALEKAR

P. N. BHAGWATI

[1962] 2 S.C.R. 813

S. V. Gupte

R. B. Datar

S. S. Jav4

H. K. Puri

KtusHNA IYER

Hindu Succession Act, 1956

Mysore (now Karnataka) High Court

Gowd Saraswat Brahmi1B

Balgaum

Mahadev

Gajanand

Kashi Nath

Rakhama Bai

Lilawatr

Lilawati

Kashi Nath. Gajanand

Shripad

February, 16,

1956

April 24, 1944

April 20, 1956

Gupte

Jow

Javali

s. 4

Hindu Succession Act, 1956

s. 12

Mulla

Surendra Na11da11

Gajanan

Hegde

Krishna Rao

Lakshmana Rao

Kashinath

Venkatarama Iyer

Anant Bhikappa(l

KrishnamurtM

Krislmamurthi's(t

Bhimji Krishna Rao

Chagla

Gajendragadkar

Bombay High Court

Bavdekar

Bhimji

Lokur

Sankara

Leach

Mysore

Bombay High -Court in

Krishtappa

Holmseian


KESARSINGH

STATE OF PUNJAB

March 4, 1974

[M. H. BEG ANDY. V. CHANDRACHUD, JJ.J

Criminal Practice.

Conviction for murder-Sentence.

The appellant was charged with an offence under s. ~02, Indian Penal Code of murdering three persons. The trial court found that there was enough evidence to show that the appellant was one of murderers of one of the three men and sentenced him to life imprisonment. The High Court enhanced the sentence to one for death on the grounds: that, the motive was to avenge murder of the appellant's brotherin-law committed some years prior to the occurrence so that there could be no immediate provocation; that, the three murders were committed in very coldblooded and brutal manner when the deceased were sleeping on their cots; that, two shots from a 12 bore gun had been fired at each of the three murdered men indicating the-determination to give no chance of survival to anyone; that, the time selected for the murder was such that no possible help could be rendered to, iprevent the death of any of the three deceased and no obstruction could be possible to carry out the design of committing these murders.

Allowing the appeal in part,

HELD : A criminal case is not tied down to a particular version as a clvii case is by the pleading of the parties. Moreover, there is so much of explicable inaccuracy often intermingled with imagination and exaggeration by witnesses who are coni vinced of the guilt of a particular accused person that courts dealing with criminal cases cannot throw the whole case over-board simply because parts of it are improbable. To hold that a version is improbable is not to disbelieve entirely or to find it to be false.ltmaybethat factsaresometimesstrangerthanfiction. Prudence, however compels courts to test the version advanced in the light of what is reason ably to be expected from the ordinary or usual norrns of human conduct and tl:e common course of natural events so as to infer what may have actually happened.

In a criminal case conviction must rest on a proof so strong that the court musl te convinced that what is concluded must necessarily have happened and is not really explicable in any other way. [492A-DJ

In the instant case although the appellant was .guilty of an offence punishable under s. 302 Tndian Penal Code, all the reasons given by the High Court for awarding the death sentence have not been substantiated. The evidence only disclosed thr.t it was more likely that the appellant wM one of the several murderers and that he caused the death of only one man with his gun, the other having b~-en killed by others who were not recognised, and, therefore, nothing, apart from the occurrence, proved about the character of the appellant. Nothing was disclosed about tile antecedents of the} app~!lant. Therefore, the real basis adopted by the High Court for enhancing the en!ence of the appellant would disappear. [493ACJ -

CRIMINAL APPELLATE JuRrsorcno~ : Criminal Appal No. 167 of 1973.

Appeal by special leave from the judgment and order dated the 24th April, 1973, of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 29 of 1972 and Criminal Revision No. 224 of 1972.

Nuruddin Ahmed and JP. Goburdhun, for the appellant.

H.R. Khanna, 0. P. Sharma and R. N. Sachthey, for the respondent.

• - 488

SUPREME COURT REPORTS U9741 3-s.c.R.

The Judgment of the Court was delivered.by -

BEG. J.-This is an appeal by special leave filed by Kesar Singh,

agd 23 years, who was convicted under Section 302 Indian Penal

Code on three counts and sentenced to life imprisonment by an Additional Sssions' Judge of Patiala for having committed the murders of three persons, namely, Gurbachan Singh, Karnail Singh and Dewan Singh, one after another, during the night between 20th and 21st June, 1970, in village Dhablan. On appeal against the conviction and a revision application by the State against the lesser penalty for murder, the High Court of Punjab & Haryana dismissed the appeal of Kesar Singh, but it allowed the revision application of the State of Punjab enhancing the s!nten~ of Kesar Singh to one ofdeath. ·

The grounds given by the High Court for enhancing the sentence were: the motive was tL avenge the murder of the appellant's brotherin-law Gurnam Singh committed about 7 or 8 years prior to the occurren~ so that there could ba no immediate provocation; the three murders were committed "in a very cold blooded and brutal manner when the deceased wer~ sleeping on their cots"; two shots from a 12 bore gun had been fired at each of the three murdered men "indicating the determination to give no chance of survival to anyone"; "the time selected for the murder was such that no possible help could re rendered to prevent the death of any of the three deceased and no

obc:.truction could be possible to carry out the design of committing these murders". Before giving these reasons, quoted mostly in the words of the High Court itself, the High Court had relied on obser vations of this Court in A.pren Joseph & Ors. Vs. The- State oj Kerafa:(l) ·

"The determination of sentence in a given case depends on a variety of considerations, the more important being, the nature of the crime, the manner of its commission, the motive which impelled it and the character and antecedents of accuso:Jds".

Learned Counsel for the appellant has taken us through the evidence of the two eye witnesses Gurdev Singh, P. W. 3, and Nachhattar Singh, P. W. 4, whose testimony had been accepted wholly by the Trial Court and the High Court about the murder of three men by the appellant singly, although the Trial Court had disbelieved the

vry reason given for Gurdev Singh to wake up in time to see the murder of Gurbachan Singh, and, therefore, had acquitted the co-accused Kishori.

It may be mentioned here that Gurdev. Singh, P. W. 3, was shown to be sleeping on the roof of the house of his uncle Dewan Singh, from where he could see his cousin, Gurbachan Singh, and brother Gunnel Singh, P. W. 5, sleeping on the roof of the next house where Gurbachan Singh was murdered on a full moon night. The prosecution version was that, when Kesar Singh and the acquitted accused, Kishori, went up the stairs to the roof, Gurmel Si_ngh, P. W. 5, who was totally blind from birth, woke up and heard Kesar Singh, whom he recognised by voice, telling Kishori to catch hold of the blind man who was awake.

(1) A.I.R. 1973 S.C. 1.

. -;:-;;~--~- ··--... ~< ., --· ., ·--

ICESAR SINGH V, PUN.TAB (Beg, J,) 489 ,. 1-{e alleged that Kishori gave him two blow~ whereupon h d M D'tt "

I h . e cnc out • ••Mar Dttta ar 1 . a • t 1s t ese cnes which are said to hav~ anlrened Gurdev Stngh. There were two abrasions on th b d f Oorel Singh, one on the forehead and another on his ewrt yi~- dicatlng tha.t he had fallen down and hurt himself. The Trial &urt I ht.d, very ngbtly, held that he must have got up and shouted only • after he .two sho~ ha~ been fired at Guibacban Singh. There was .B no po1nt m assaultmg hm merely because he was awake. If that was do-ne he was sure o rruse hue and cry and wake up others. Therefore, the prosecution ver~1on , that _Guniev Singh, P. w. 3, had got up because of Gurmel Smgh s cnes and had seen the appellant

firin~ twice: at Gurbahan Singh hd to be discarded as too transparent .; ... an emllishment With an obviOus purpose behind it. The High c Court, however, had not analysed the evidence of any of the witness. It had ob.erved rather mechanically:

"Both Gurdev Singh and Nachhattar Singh have given colliistent version of the incident and their statements are wholly free from inaccuracies or discrepancies, even though both these witnesses were cros~-examined at considerable length.

Nothing at all has ben brought out in their cross-examination D which would show that the story set up by them in the examina- !ion-in-chief wa.'i not true".

Apart from the fact that the High Court l).ad not even noti12d the very good reason.~ given by the Trial Court for discarding the evidence of Gurmel Singh, P. W. ~. including the fact that this wit-

DC!iS, who claimed to have identified Kesar Singh by voice, could not recognise Kesar Singh's voice when the Presiding Judge spoe to K.esar Singh, during the trial, to test the correctness of the cla1m of the 'olitness, the High Court bad overlooked a numb:er of featues .brought out by cross-examination of the two eye wtnesse~ whtch

made the version given out by them very difficult to beheve totally .•

Gurdev Singh had described Kesar Sigh s wearing a blue tur- F ban whereas Nachhattar Singh had descnbed tt a cream colorcd ("Badami") turban. While Gur<lev Singh had srud that Kesar Stnb

; ·.·: wore a whtte shirt Nachhattar Singh had said that he was draped tn a clw1ar with stripes on it and wore a shirt of sever a~ col?ur5. Con- ~ "

i4ering that Nachbattar Singh was said to be sleep1ng tn remote COrllCr of the enclosure around the house on the roof of wtch Sf?u~

G. cha.u Singh was murdered and I?ewn S!ngh .nd Ka:n~l di~lt were asleep nt 11omc distance from h1m sn th1s endosure, 11 1 1 to believe that Nachhattnr could have made out not Xnlti'rrtthef ~r of the turban but also the r.tripes on the chadar a:; s. . 0 e ld s . . escnpttons cou . 1nn even ou a full moon night. These . vrytng n with uns had icato that perhaps two different uthstnulad :tied as 1he murn seen shooting but only Kesar. Stng was I e 1

11 derer with a gun, .

A t ( m the cross-exanrina!lon f nother broad feature, brought ou rKe Singh was shown to 0 the witnesses, may be pointed out here. rar 3-t.f4S Sup Cl/75 ....

- ..

I .

4'90

SUPREME COURT REPORTS

[1974] 3 S.C.R.

have first climb:d to the mof of the house where Gurbachan Singh was asleep and then to have come down the stairs to shoot at Karnall Singh on his cot, and, threaf£er, to have shot D~:wan Singh on his cot. 1t does appear rather unlikely that, while even a blind man had got up, and Gurdev Singh, P. W. 3, sleeping onthe roof of the next house, and Nachhattar Singh, P. W. 4, Puran Singh, P. W. 6, declared hostile, who were als'} steeping nar Karnail Singh and Dewan Singh, had got up, neither Karnail Singh nor D.!wan Singh could get up from their cots and try to either grapple with or run away from the assailant who was permitted to quietly reload his double barrelled gun to shoot at each of the three men twice each time. Dewan Singh_

was, however, said to be awake and sitting up in his bd when shot.

But, no empty cartridges were recovered. from the scene of occurrence.

The witnesses, who claimed to have oMerved everything so closly, did .not depose that Kesar Singh took out and put the spent cartridges into a pocket.

Another difficulty in accepting the proscution version totaEy, a . put forward by the two eye witnesses, is that Gurdev Singh, P. W. :;, was shown to have rushed out of the house on the roof of which he was sleeping and to have taken up his stand at the bottom of the stairs down which the murderer and his companion are shown to have descended altho:1gh Gurdev Singh was. empty handed and admitted that he was .afraid of Kesar Singh who had a gun in his poSS'!S'iion.

We find it very difficult to believe that Gurdev Singh would have rushed and taken up his stand here to S'!e the murders o ·~ Kamail Singh and D::wan Singh if h:: had actually s'!en Kesar Sing11 shoot twice at Gurbachan Singh on the roof. We think that it is very likely that Gurdev Singh woke up, like the others nearby. at hearing the gun shots and took up his stand near the stairs from where he could have S';!en Kesar Singh murdering Karnail Singh and Dewan Singh. It is only because he had not seen the murder of Gurbachan Singh that he could b:: expected, to act like this and c()me and stand at the bottom of the stairs, without apprehending danger to himself, down which the murderer descended. If he had rushed at once t() this spot in this fashion he was, mme likely, than n()t, to have virtually intercepted the murderer.

The broad probabilities which we have melltioned above certainly make it difficult to accept. unhesitatingly, as the High Court had done, the version that Kesar Singh alone shot at each of the three

men and killed them. We have, however, no doubt that Kesar Singh was seen by the witnesses running away with a double barrelled gun and had actually killed at least one of the three men murdered on the night between 20th and 21st June, 1970. and could have been seen doing so. It is likely that more than that is due to the not un. common pr()pensity of witneses f() speculate, imagine, and exaggerate.

Evidence show~ that the appellant had two brothers at least one of whom was. a resident of village Dhablan at the time of tpe. shooting.

Jf implication was only due to a desire to take revenge for three murders. the appellant would not have been the only one who would have

KESAR SINGH v. PllNJAB (Beg, /,) 491

been alleged to have used a gun o shoot when there was opportunity to implicate others too in the same position as the appellant so far as any enmity goes. It is difficult to hold that either Gurdev Singh or

Nachhattar Singh, . who had both b:en prosecuted for the murder of their step brother Gurnam Singh but acquitted about seven years before the occurrence, could have any grudge for this reason. only either against Kesar Singh or his brother Bhajan Singh both of whom were residing with and looking after the land of Tej Kaur the widow of Gurnam Singh. If the witnesses had implicated Kesar Singh merely out of suspicion they would have involved Bhajan Singh also for the same reason. ' The statements of the two eye witnesses find corroboration from the fairly detailed account of the occurrence of about 3 a.m. in the F.IR. lodged at Police Station Sadar Patiala about 10 miles away at 8 25 a.m. on 21-6-1970.

It appears that Lal Singh Sarpanch and Jag Singh Panch, had also come to the scene of occurrence after it had taken place and had gone to the Police Station so that the F.I.R. was lodged in their presence although they did not sign it because there was no need for that.

It was contended that they. ()ught to have en proouced by the prosecution becausil the eye witnesses gave their accounts to them fist. They were neither eye witnes.es nor essential for unfold

ing of the prosecution version ... If the eye witnesses had said anything before them which could help the accused, they could have been pro duced in defence, or, in any case, ti)e accused could have applied for their examination under Section- 540 Criminal Procedure Code.

'We do not think that the failure to examine these witnesses either by the prosecution or by the Court, suo moto, can cast a doubt on the prosecution case .

. Apart from the motive to murder, we think that the prosecution case against the appellant finds corroboration fom the statement of the Investigating Officer, Kuldev Singh, P. W. 12, who deposed that when he went to the house ofTej Kaur, looking for the appellant, he found it locked. The appellant could be arrested only on 27·6,1970 after a "Nakabandi" at the canal bridge of village Dhakraba and was found ifl illegal pos.sesion of the gun No. 60780 loaded with live cartridges and with powder lining inside the barrel so that it must

have been usd. At the trial, the appellant falsely denied this recovery and circumstances of his arrest. His conduct was a:rtainly ·

very suspicious.

The manner in which the witnesses describe the infliction of the injuries is also corroborated, according to the. Rig~ C?urt, by the medical evidence. On the whole we agree wHh tlus V!eW.

Although we are not impressed by the rather read~ atld failc acceptance by the High Court of the whole prosecution versiOn, which suffers from the improbabilities mentioned above, we find the evidence to be enough to establish beyod reasonable doubt that Kesar Singh was at least one of the posstbly several murderers.

f ~·

SUPREME. COURT REPORTS

£19741 3 S.C.R.,

Learned Counsel for the appellant bas s1;1bmitted that it would not be prudent, while discarding th~ case of tnple murder against Kesar Singh, to uphold his conviction on the assumption that he COilllllitted at least one murder as this \Vold be contrary to the.procution version. It is also urged that a Witness who has been disbelieved becall'le he has falsely implicated an accused for one murder could not be relied upon for convicting the accused for. another murder.

We think that a criminal case is not tied down to a particular version as

a civil case is by the pleading of the parties. Moreover, there is so much of explicable inaccuracy often inter-mingled with imagination and exag~; eration by witnesses who are convinced of the guilt of a pa.rticular accused person that Courts dealing with criminal cases C&llDOt throw the whole case OVer-board simply because parts Of it are improbable. To hold that a version is improbable u not to dil!bclieve it entirely or to find it to be false. It may be that facts arc '9metimes stranger than fiction. Prudence, however, compels

Caurt• to test the version advanced in the light of what i! reasonably to l,>e expected from the ordinary or usual norms of human conduct

and 'the common course of natural events so as to infer what may hueactually happened. In a criminal case a conviction must rest on a. proof so strong that the Court must be convince<:! that what it concludes must necessarily have happened and is not reasonably explicable in any other way.

We think that the version given by the two eye witnesses, even though it suffers from improbabilities mentioned above, so as to make it:; total truthfulness doubtful, must

be true at least so far as participation of Kesar Singh in the murder

o~ three men by shooting at least one of them, if not both Karnail SJD~ and Dewan Singh before their eyes is concerned. This much C.~~· we think, be disbelieved.

As pointed out abC>ve, the par- IJCipauon cf Kesar Singh in the occurrence is sufficiently corroborated

y other facts and circwnstance.' mentioned above. Thus, the testimony . of the two eye witnesses docs not stand ulone against the appellant. We are unable to conclude that the two eye witnes

helng to the category of wholly unreliable witnesses so that thc1r teStlDlDny cannot be acted upon even when corroborated by other c~ .

It may be mentioned bere that Kesar Singh's sister, Tej Kaur, with whom he was saiu to be residing and who was the owner of the licensed double barrelled gun recovered from the appellant's poises:>ion, was al-io challaned as an instigator, but she was Jis G charge\.1. It nuy be that the appellant h:1J grown up from hildho<>d hearing the woeful story, from his widowed sister, of the murder of

!Ji~ brother-in-law, Gurnam Singh, who was a step-brother of Guruev Singh. The appellant, who i'> a young man, may have bren im pellcd or goaded 011 by the grief of his whJowcd sister to participate I in the murd.:r of three men Dll a pilrt of a vendetta. It had come in Jl

c:\'ince that two of the murdered men, Karnail Singh and Dewan Siogh, had been proiecuted for the murder of Gurnam Sin~:h the .· brother-iu-Ltw of Kcsar Singh and had been ;\cquitted.

- y-. - - ·- -t ·: .. \ - ... r ·- . -

B !

DSAR SINGH v. PUNJAB (Beg, /.) 493

Therefore, although we hold that Kesar Singh was guilty of a11 offence punishable under Section 302 J. P. C., we do not consider all the reasons given by the High Court for awarding the death sentnce to have been substantiated. The High Court had overlooked facts which we have mentioned above. It had also overlooked that there was nothing, apart from the occurrence, proved about the character of the appellant. Nothing was disclsed about the antecedent~ of the appellant. If it was more likely, as we think it was, that the appellant was one of the several murderers and that he had caused the death of only one man with his gun, the others having been killed by others who were probably not recognised, the real basis ad()pted for awarding a death sentence to him would disappear.

The result is that, although we uphold the conviction of the appellant for an offence punishable under Section 302 I. P. C., we set aside the sentence of death and substitute it by life imprisonmenT, The appeal is thus partly allo\\ed to the extent indicated above .

P.B.R. • 4pptal allowed iJJ 14Jrt.

KESARSINGH

STATE OF PUNJAB

March 4, 1974

M. H. BEG ANDY. V. CHANDRACHUD, JJ

Indian Penal Code

s. 302

Tndian Penal Code

Nuruddin Ahmed

JP. Goburdhun

H.R. Khanna

P. Sharma

R. N. Sachthey

Kesar Singh

Section 302

Code

Patiala

Gurbachan Singh

Karnail Singh

Dewan Singh

20th and 21st June, 1970

Dhablan

High Court of Punjab & Haryana

State of Punjab

Gurnam Singh

Gurdev Singh

Nachhattar Singh

Gurdev Singh

Kishori

Gurdev. Singh

Gunnel Singh

Gurmel Si_ngh

ICESAR SINGH V

Oorel Singh

Guibacban Singh

Guniev Singh

Gurbahan Singh

Gurmel Singh

K.esar Singh

Kesar Sigh

Nachhattar Singh

lev Singh

Kesar Stnb

Nachbattar Singh

Nachhattnr

Karnall Singh

Puran Singh

D.!wan Singh

Kamail Singh

D::wan Singh

Kesar Sing11

Nachhattar Singh

Bhajan Singh

Tej Kaur

Lal Singh Sarpanch

Jag Singh Panch

Criminal Procedure Code

Kuldev Singh

ofTej Kaur

Dhakraba

Karnail

Guruev Singh

Dewan Siogh

Gurnam Sin~:h

Kcsar Singh

Section 302

Section 302