RAJA BAHADUR MOTILAL BOMBAY MILLS LTD.

AND ANOTHER

M/S. GOVIND RAM BROTHERS (P) LTD., AND

ANOTHER.

March 12, 1974.

[V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]

Bombay Rent Hotel mul Lodging House Ratts Control A.ct (57of1947), s. 11 (I)

(c) -Applicability of principle of apportionment.

On September l, 19"40, the basic date under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the properties in dispute were parts of a larger entity comprised in a single lease. In March 1948, the respondent took a fresh lease of the properties in dispute, Thereafter, the respondent filed applications in the court of Small Causes for fixation of standard rent on the basis of apportionment. The trial court dismissed the applications holding that the premises, on account of structural alterations, had undergone such a change that they could no longer be identified with the property that existed in Septermber 1940;.that the mode of deter~ mining the rent by apportionment was not avai1ab1e to tl:e tenant; and that there was no sufficient material for asc:ertainina the standard rent in any other way. This order was set aside in revision and the case was remanded to the trial court. After remand, the trial court held that except with respect to three items of the premises in dispute, which were new structures, there was no change of identity in the rest of the properties; that the new structures beJonged to the respondent who was consequently liabJe to pay rent only for the land underneath; and on that basis, applying the principle of apportionement, fixed the standard rent. With respect to one item the trial court took into consideration the investment made by the landlord inclusive of the cost of structures, estimated the value of the land underneath as in 1940, and fixed the standard rent on that basis.

In revision it was held that the ownership of the three new structures also vested in the appellant, that he was entitled to get a fair return on that investment also and that the value of the land should be taken as in 1948 and not in 1940, and the standard rent was fixed on that basis. Further revisions to the High Court were dismissed with some arithmetical corrections.

In appeal to this Court,

HELD : The principle of apportionment is applicable to the fixation of standard rent of the premises in dispute and the principle had been rightly invoked and applied. [584 F-0] .

(a) One of the primary objects of the Act is to curb exaction of extortionate rent. Section 11(1) empowers the Court to fix the standard rent at such amount, as having regard to the provisions of the Act and the circumstances of the case, the Court deems just, If on the basic date the premises were not let out separately but were a part of the subject matter of a larger demise then s. I l(l)(c) comes into operation.

If the standard rent of a whole was a specific amount it stands to reason that the standard rent of a part or sub-division of the whole should not ordinarily exceed that amount. Therefore, if in the circumstances of a given case the court feels that for securing the ends of justice and giving effect to the provisions and policy or the Act it is reasonably necessary and feasible to work out the standard rent by apportionment, it can legitimately do so. The language of the Act consistently with its scheme and inbuilt policy is elastic enough to permit the fixation of standard rent on apportionment basis. At the same time, caution and circumspection are necessary in applying the principle to the particular circumstances of a case. For example, if after the material date, the landlord has made investments and improvements in the premises it will be just and reasonable to take that factor also into account and give him a fair return on such investment. Similarly, in apportioning the rent, the Court must also consider other relevant circumstances and advantages enjoyed by the tenant -0f thepremises of which the standard rent' is in question as compared with the rest

'"·

of the property in which tis comprised. Fu.rt her, where after the basic date the pre- A mises completely changed their identity, apportionment as a method of determining just standard rent loses its efficacy and may be abandoned altogether.[583E-585Cj

NcrC!)'anc.l Bansila/ v. Venkatrao Anant Rai 61 Born. L.R. 352, Bainbridge v.

Congdon (1925) 2 K.B. 261 and Fox v. Bishop of Chester (1824) 2 B & C 635 at 655 referred to.

Dhanrajgirji Nar,11'ngirji v. W. G. Ward (1925) 27, Born. L.R. 877 and Data Shoe & Co. Ltd. v. Aarayan Das Mullick and Ors. not approved. (b)(i) The findings of the trial court before remand had been set aside in the order of remand, and there is nothing wrong or unfair or untenable in the method adopted by the lower courts after remand which would warrant interference by this Court in exercise of special jurisdiction under Art. 136 of the Constitution. [587J?-GJ

(ii) The question whether certain propertY has changed its identity.after the basic date is largely one of fact. The factual conclusions arived at by the revisional court and High Court are not shown to be perverse or manifestly unjust. It was with regard to the unchanged old properties that the High Court and the Revisional Court mainly adopted the method of apportionment. Even so, they allowed the landlord a fair return over the amount invested by him towards the cost of flooring, ceiling and other fixtures. since the rent of the old unchanged premises was fi:ited mainly on apportionment basis, the courts rightly did not think it necessary to take the value of their sites separately into computation in fi.:iting the standard rent. [588

B-D]

(iii) As regards the new structures the courts below, in capitalising their vallle did take into account the value of the land and took the market value of the land as in the year 1948. [588B]

CIVIL

APPELLATE

JURISDICTION : Civil Appeals Nos. 1186-1188 of 1972.

Appeals by special leave frnm the Judgment and Order dated 12/ 13/15th October, 197! of the Bombay High Court in Special Civil

Jl.

Application Nos. 555, 556 of 1967 and 72 of 1968.

K. S. Cooper, M. K. .Shah, P. H. Parekh and Sunanda Bhandare, for the appellants.

B. N. Lokur, Rameshwar Nath, for respondent No. 1.

Subodh Markendeya, for Respondent No. 2.

The Judgment of the Court was delivered by F

SARKARIA, ].-Whether the principle of apportionment is applicable to the fixation of standard rent of a premises under the Bombay Rents, Hotel and Lodging House Rates Cohtro[ Act, 1947 (for short, the Act); if so whether on the facts of the case, the principle has been rightly invoked-is the two fold question that falls for decision in these three appeals by special leave directed against the judgment of the High Court of Judicature at Bombay.

The material facts are as under :

A big compound, measuring II ,150 sq. yards, at'156 Tardeo Road, Bombay, belonged to Raja Bahadur Moti La[ Mills, Ltd., Bombay, appellant No. I. The Mills were shifted from these premises in the year

1930.

In 1932, th~ whole of this estate including the structures standing on a part of it, was Jet out to Sound Studios Ltd. Between the years 1932 and 1940, some part of it was sub-let by Sound Studios to Sheraj Ali, who was the proprietor of M/s. Famous

kAJA BAHADUR MILLS LTD. v. G. R. BROS. (P.) LTD. (Sarkaria, !.) 57!i

Cine Laboratory and another part to Neon Signs (India) Ltd., and the rest of the estate continued to be with Sound Studios. Thereafter, Sound Studios went out of the picture and the whole estate was let out to National Studios Ltd. on October 23, 1940 at a monthly rent of Rs. I 700/- for a period of two years.

In July 1941, National Studios surrendered their lease and Sheraj Ali became a direct tenant under appellant 1 in respect of the premises in his possession, called for the sake of identification, 983/1 (whole) and 983/2 (Ground floor).

On December I, 1941 and again in November I 942, Sheraj Ali took on rent additional portions of this estate so that his original rent, which was Rs. 400/-, was first increased to Rs. 600/- and then to Rs. 700/- and thereafter in November 1942 to Rs. 875/-.

By November 1947, Sheraj Ali was paying Rs. I 200/- per month as rent for the premises demised to him including some new structures which had been built.

Sheraj Ali had taken a loan from M/s. Govind Ram Bros. Ltd., Respondent I on the security of his Film Studio Equipments. He failed to repay the loan. Thereupon, Respondent I instituted a suit for recovery of the amount and obtained a decree from the High Court, on February 27,1948.

As a result oft he High Court's decree, the right, title and interest of Sheraj Ali in the mortgaged property were assigned to Respondent I. Respondent I, in consequence, took a fresh lease on March 19,1948 from appellant No. I of the properties (called for identification) 983/1 to 983/12, which were in the tenancy of Sheraj Ali, at a conttactural rent of Rs. 1228/- p.m. On the same date, Respondent 1 executed another lease in respect of three rooms in the sa1ne premises (marked for identification as) 984, in favour of appellant I, on a monthly rent of Rs. 750/-.

Respondent I failed to pay the co.ntractual rent, regularly, which fell into arrears which were not cleared despite the pressing demands made by the Receiver. On March 13, 1954 the Receiver wrote to Respondent I threatening to take legal proceedings for the recovery of the rent. This Receiver, who is now appellant No. 2. had been appointed by the High Court in Suit No. 454 of 1949 instituted by appellant 1 against the Insurance Company.

On April 14, 1954, two applications were filed in the Court of Small Causes by Respondent I for fixation of standard rent in respect of the pren1ises coin prised in the said two leases; one application, R. A. N. 983/54, relates to properties 983/J to 983/12, and the other (R.A.N.

984) to premises 984. It was alleged in the applications that since on September, I, 1940, the entire estate, including the properties in question. had been let out on a monthly rent of Rs. 1700/-, standard rent of the premises tn question should be fixed on the basis of apportionm 'nt In particular, it was pleaded that fair rent of Rs. 983/1 to 983/12 should be I/8th of Rs. 1200/- which was later corrected as 1700/-. On the same basis it was alleged in the second application, that fair rent of premises 984 should be Rs. 75/- p. m.

The appellants resisted these applications and averred in R. A. N. 983/54, that several entirely new structures had been built and substantial alterations made in most of these structures between the years 1940 and 1948, as a result whereof the property had lost its identity, and -consequently, fair rent could not be fixed 'on apportionment basis.

On June 11, 1958, Respondent 1 made an application for amendment -Of the Standard Rent Application <R.A. N. 983/54) for adding an alternative ground based on the value of the land and cost of construction -so that in the event of the court holding on the preliminary issue in favour of the appellants, the standard rent could be fixed on the basis -Of the valuation of the land and the construction. This application was disallowed.

On July 30, 1958 Respondent 1 made an application for amendment -Of his R. A. N. 984of1954 on lines similar to that in R. A. N. 983154.

It was also dismissed by an order, dated July 31, 1958. ·

At the stage of arguments on December 4, 1958, Respondent I moved another application for amendment and addition of the plea that they were the owners of the structures in premises 983/10, 983/11 And 983/12.

The second amendment was not sought to be made in the other application R. A. N. 984/1954 relating to property 984. This prayer was also declined,

The trial court (Samson J.) by its judgment dated April 2, 1959, found that the premises in question on account of structural alterations had undergone such a change that they qmld no longer be identified with the property that existed in September 1940 and that the mode of determining rent by apportionment was not available to the tenants. In the result he dismissed the applications, adding "there is no sufficient material to ascertain the standard rent in any other way '.

Against those orders, Respondent 1 filed a revision petition unuer s. 129 (3)ofthe Act before the Revisional Court of Small Causes, Bombay. which accepted, the same set aside the order of the trial judge, allowed the amendment and remanded both the applications for fixation of fair rent to the trial court.

Against this remand order, dated August 8, 1960, of the Revisional Court, the appellants preferred two Civil Revisions to the High Court -0f Bombay.

Duringthependencyofthose Revisions, the trial court allowed the amendment and proceeded to decide the entire matter afresh. These facts were brought to the notice of the High Court, which, however, dismissed the revision petitions by a judgment dated February 3, 1961 holding that the first Revisional Court had, in fact, remanded the entire matter for trial de novo, after rightly allowing both the amendments.

After the remand, the trial court by its judgment, dated Aprii 25, 1961 held that except 983/10, 983111 and 983/12, which were new structures, there was no change of identity in the rest of the properties

,, '

RAJA BAHAOUR MILLS LTD. v. G. R. BROS. (P.) LTD. (Sarkaria, J.)sst

i. e. 983/1 to 983/9; that new structures 983/10, 983/II and 983/12 belonged to Respondent 1 who was consequently, liable to pay rent only for the land underneath; that the cost of repairs of the properties 983/8 and 983/9 after they had been destroyed by fire, was mainly borne by Respondent 1, the landlord's contribution being Rs. 8,500/- only.

Applying the principle of apportionment, it fixed the standard rent of the properties 983/1 to 983/12 at Rs. 400/- p.m. subject to permitted increases after 1954.

Regarding the premises 984 (in R. A. N. 984/54), the trial court gave a return on the investment of Rs. 40,000/- made by the landlord inclusive of the cost of structure and the value of land underneath at Rs. 30/- per sq. yard (as that of 1940) and fixed the standard rent at Rs. 386/- p. m. subject to permitted increases after 1946.

Aggrieved by these orders of the trial court, appellants and Respondent 2 filed two revision applications under s. 129 (3) to the Revisional Court of Small Causes which by its judgment, dated September 30, 1964, substantially upheld the findings of the trial court, inter alia with the exceptions : (i) that the ownership of the new structures 983/10, 983/11 and 983/12 vested in Appellant I, who was entitled to get a fair return on that investment; (ii) that the value of the land "married" to the new structures 983/10, 983/11 and 983/12, and 984/54, should be taken at Rs. 50/-persq. yd., i.e. as ofl948 and not as of 1940as had been done by the trial court on remand. In the result, the standard rent in R.A.N. 983 was raised to Rs. 981/- and in R.A.N. 984 to Rs.411/-p.m.

To impugn the decision, dated September, 30, 1964, of the Revisional Court, the parties preferred six Special Civil Applications under Art. 226/227 of the Constitution to the High Court. By a common order, a learned single Judge of the High Court dismissed these applications except that he corrected some arithmetical errors and, in consequence, fixed the standard rent of properties 983/1 to 983/12 at Rs. 841.07 and that of premises 984/54 at Rs. 462/11 p. m.

- It is against this decision dated 12/13th October 1971 of the High Court that these apeals have been filed by special leave.

The first contention of Mr. Cooper, learned Counsel for the appellants is that there is no provision in the Act which requires standard rent to be fixed on apportionment basis; rather. the definition of "premises., ins. 5(3) (b) which speaks of "part of a building let separately," read with clause (i) ofs. 5(10) and clause (c) of s. 11(1) with due emphasis on the article 'the' immediately preceding the word 'premises' in the said clauses, indicates that the standard rent would be the rent for which the suit premises were first let separately on or after the basic date i.e.

September I, 1940. lfon the basic date-proceeds the argument-the premises in question did not form the subject of a separate, single demise but had been let out together with other portions of larger premises, its standard rent could not be determined on the footing of the rent payable for those different portions.

Reliance

bas been placed on Dhanrajgirji Naraingirji v.

W. G. Ward;(!) and Bata Shoe Co. Ltd. v. Narayan . Das Mullick and Ors.(2) Counsel had further tried to distinguish Capital and Provincial Property Trust Ltd. v. Rice(3) and JJhikaji Ramchandra Paranjpe

v. Vishnu Ramchandra Paranjpe(4), referred to in the judgment of the High Court.

On the other hand, Mr. Lokur, learned Counsel for Respondent I maintains that the principle of apportionment has always been accepted by the Bombay High Court as an appropriate guide in fixing standard rent under the Act of premises which on the basic date had been let out as part of a larger entity. It is pointed out that in Narayan/al Bansi/al v. Venkatrao Anant Rai(S); a Bench of the High Court while considering the question of standard rent in respect of another portion of the very property of the appellant-Mills, had invoked this principle.

Before we deal with the contentions canvassed, it will be proper to make a brief survey of the relevant provisions f the Act:

The material part of the definition of "premises" in s.5(8) reads: 0 "Premises" means:-

(a) any land not being used for agricultural purposes;

(b) any building or part of a building let separately .... "

(emphasis supplied)

Sub-section(IO)ofthesameSectiondefines "standard rent", in rela- E tion to any premises, to mean-

( a) where the standard rent fixed by the court and the Controller respectively under the Bombay Rent Restrictions Act, 1939 or the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944, such standard r.;, nt; or

(b) where the standard rent is not so fixedfsubject to the pro- F visions of section 11,

(i) the rent at which the premises were let on the first day of September 1940, or

(ii) where they were not let on the first day of September 1940, the rent at which they were last let before that day, or G

(iii) where they were first let after the first day of September 1940, the rent at which they were first let, or

(iv) in any of the cases specified in section 11, the rent fixed by the Court;

(1) (19251 27, Born. L.R. 877.

(2) A.I.R. 1953 Cal. 234.

(3) (1952] Appeal Cases 142.

(4) 56 Born. L.R. 402.

(5) 67 Born. L. R. 352.

A Section 11 empowers the Rent Court to fix the standard rent at such amount, as having regard to the provisions of this Act and the circumstances of the case, the court deems just-

(a) where any premises are first let after the first day of

September 1940, and the rent at which they are so Jet is in 8 the opinion of the Court excessive; or

(b) where the Court is satisfied that there is no sufficient evidence to ascertain the rent at which the premises were let in anyone of the cases mentioned in sub-clause(i)to (iii) of clause (4) of sub-section (10) of section 5; or

(c) Where by reason of the premises having been let at one time as a whole orin part and another time in parts or a whole, or for any other reasons, any difficulty arises in giving effect to this part; or

(d) Where any premises have been or are let rent free or at a nominal rent or for some consideration in addition to rent; or

(e) Where there is any dispute between the land-lord and the tenant regarding the amount of standard rent."

Clause (c) read with the openinig part of s. ll(l) is crucial for our purpose.

One of the primary objects of the Act is to curb exaction of extortionate rents and to stabilise the same at pre-War level. In achieving that object, however, it avoids a Procrustean or mechanical approach.

While pegging the basic line to September 1, 1940, it significantly subordinates "standard rent" by its very definition ins. 5 (10) (b) to the benignant jurisdiction of the'Court under s.11. And the key words of the latter provision, into which the conscience of this anti-rack-renting statute is compressed, are ''the circumstances of the case, the Court deems just". These words inhibit a rigid and ossified determination of "standard rent". They leave sufficient "play at the joints", investing the court with a wide discretion in the matter.

According to the scheme of the Act, while "rent" recoverable by the landlord, may owing to permitted increases, fluctuate, the 'standard rent' always remains fixed or stationary.

If on the basic date, the suit premises were not let out separately but were a part of the subject-matter ofa larger demise-as in the instant case-difficulty arises in giving effect to the statute. Clause (c) of s.

11(1) then comes into operation. To resolve the difficulty this clause and the related provisions are not to be construed in a narrow technical sense which would stultify or defeat their object. It is to be interpreted liberally in a manner which would 'advance the remedy', 'suppress the

mischief' and foil 'subtle inventions and evasions' of the Act.

Construed in accordance with this socially relevant rule in Heyden's case the meaning of'the premises' having been let at one time as a whole, spoken of in this clause, can legitimately be deemed to cover the larger premises which, on the basic date, had been let as a whole and of which the suit premises was a part let out subsequently. In any event, the amplitude of the phrase "or any other reason" in the latter part of the clause, is wide enough to embrace cases of this kind and confers a plenary curative power on the Court.

True, that unlike the English Rent Control Act of 1920 or the later English Acts, the (Bombay) Act doos not expressly speak of apportionment. But the language of its relevant provisions construed consistently with the scheme and inbuilt policy of the Act, is elastic enough to permit the fixation of standard rent on apportionment basis.

As noticed already,s.11 (!)gives a discretion to the Court to fix such amount as standard rent as it udeems just"· However, in exercising this discretion the Court has to pay due regard to (i) the provisions of the Act and (ii) the circumstances of the case.

Apportionment or equal distribution of the burden of rent on every portion-is a rule of justice and good sense. If the standard rent of a whole was a specific amount, it stands to reason that the standard rent of a part or sub-division of that whole should not ordinarily exceed that amount. Therefore, if in the circumstances of a given case the Court feels that for securing the ends of justice and giving effect to the provisions and policy of the Act, it is reasonably necessary and feasible to work out the standard rent by apportionment, it can legitimately do so. This principle, however, is applicable where on the basic date, that portion of which the standard rentis to be determined, had not been let separately as on unit, but tho whole, of which it is a part, had been let on that date. Apportionment postulates that on account of its having been let on the basic date, the whole had acquired a standard rent which has to be allocated to smaller units subsequently carved out ofit.

It is thus clear that the principle of apportionment is not alien to the spirit of the Act, and has indeed been often invoked by the courts in fixing standard rent under this Act. In Narayan/al Bansilal's case (supra), a Division Bench of the Bombay High Court determined standard rent of another part of this very estate of the Mills in accordance with that principle.

However, while conceding that apportionment is not foreign to the scheme, purpose and policy of the Act, we will like to emphasise the need for caution and circumspection in invoking it. It is not to be rigidly and indiscriminately applied as a cast-iron rule of law regardless of time and circumstances or the equities of the case. A doctrinnaire approach, not consistent with a just and fair determination, stultifies the whole salutary purpose of justice to both, the landlord and the tenant. If necessary, it can be adjusted, adapted and attuned in the light ofthe particular circumstances of the case, to satisfy the statutory requirement of

fixing the standard rent as at a "just amount. Thus if after the material date, the landlord has made investments and improvements in the premises, it will be just and reasonable to take that factor also into account and to givehimafair returnonsuchinvestments. Further, in apportioning the rent, the Court must consider other relevant circumstances, such as "size, accessibility, aspect, and other physical advantages" enjoyed by the tenant of the premises of which the standard rent is in question, as compared with those of the rent of the property in which it is comprised (see Bainbridge v. Contdon(l)J. Where after the ba:io date, the premises completely change their identity, apportionment as a method of determining just standard rent, loses its efficacy and may be abandoned altogether. We have only illustrated, not exhaustively enumerated the relevant circumstances and their implications.

At this stage, we may notice the decisions in Danrajgirji v. W.C.

Ward(supra)and Bala Shoe and Co. v. Narayan Dass(supra)relied upon by Mr. Cooper.

In the first, a learned single Judge of the Bombay High Court was considering ss. 2(l)(a) and 13(l)(a) of the Bombay Rent (War Restriction Act II of 1918), which were, to an extent, similar to sections 5(8)(b) and (IO) and ll(l)(c) o(the 1947-Act. There, the Port Trust had in March 24, 1915, leased the building known as Watson's Annexe to one Dr. Billimoria at a rental of Rs. 2,850, besides ground rent a.nd taxes. Dr. Billimoria sublet the premises in different flats to different tenants. The premises in the occupation of the defendant were sublet to.him at a rental of Rs. 75/- in September, 1915, i.e. before September 1, 1916 which was the basic date under the 1918-Act. The tenancy of Dr. Billimoria was terminated by a consent decree on July 31, 1923 and thereafter, the defendant held directly under the plaintiff. The question arose as to whether. standard rental of the flat should be calculated on the basis of the actual rent of Rs. 75/-, on the basis of the subletting or whether it should be determined by apporiionment of the rent which Dr. Billimoria was paying to the Port Trust on the basis of the first letting. Pratt J answered this question thus:

"The Rent Act itself in the definition of the premises refers to a part of the building separately let as premises of which the

standad rent has to be determined and such standard rent must bedetennined with reference to those premises in the manner specified bys 2(1 )(a) of the Act. The standrard rent, therefore, must be ascertained on the admitted basic rent of Rs. 75/-...... Again, if the head-lease instead of being as here the lease of one building consisting of flats bad been a lease of a large number of buildings constituting a large estate, it would be almost impossible to make a correct apportionment of the rent. I do not think it was the intention of the Rent Act that landlords and tenants should bo driven to do a difficult and expensive process of valuation and calculation before their rent could be ascertained."

{I) (1925] 2 K. B. 261. 9-M4.SSup.CJ/75

,)'.

We see force in the argument as also textual and pragmatic support.

But these considerations do not preclude the Court from import; ng the flexible factors of fairness suggested by the circumstances of the case.

Indeed, s. II, as explained earlier, obliges the Court to do it. Moreover, the interpretation of"premises" adopted by the learned Judge was a little too literal, narrow and divorced from the purpose and content of the provisions relating to fixation of standard rent. Nor was it in aecord with the scheme and object of the 191E-Act. The court'sjuris diction to consider, as a strong circumstance, proper apporti)oment of rent is not taken away, in our view.

It may be noted that just like the opening clause of s. 5 of the 1947- Act, which defines •;, remises" "standard rent" etc., the corresponding s. 2(1) of the 1918Act, also, started with the qualifying words : "Jn this Act, unless. there is anything fepugnant in the subject or context".

While applying these definitions to particular cases and provisions of the Acts, these words should not be lost sight of. The argument in favour of adopting the restricted interpretation, ignores this rider to the definitions, provided by the Legislature in the'e statutes.

We do not intend to over.burden this judgment with a discussion the decision in Bara Shoe & Co's case (supra). Suffice it to say that that is a decision under the West Bengal Premises Rent Control Act {I 7 of 1950) which stands on its own facts. It cannot be accepted as laying down a rule of universa1 application. It is vulnerable, more or less on the same grounds, on which the decision in Dhanrajgirji's case can be assailed.

We reject the narrow interpretation of the relevant provisions ofss. 2 and II, c1nvas'iCd for by the appellants, for two reasons: Firstly, it will leave the door wide open for evasion of this statute by-what Abbot C. J. in Fox v. Bishop of Chester(I)-called "shift or contrivance"-All that a greedy landlord, need do to squeeze out more rent would be to divide his premises into several parts and Jet them out separately on exorbitant rents. Such an evasion mav amount to a fraud upon the statute. Secondly, such a construction so manifestly subversive of one of the primary objects of the Ac! would be wholly beyond the intend; nem of the Legislature.

For reasons aforesaid we would n!gat.ive the first contention of Mr. Cooper, as an inflexible proposition and answer the first part of the question posed in the affimative to the extent indicated. It takes us to the second part of that ques•ion namely whether the principle of apportionment was correctly applied to the factc of the case?

Mr. Cooj>Cr contends that the first trial court (Samson J.) had right ly found, that the premises in question on account of extensive alterations and constructions undergone a complete change after the basic date, and therefore standard rent could not be determined by apporoining the rent of the whole among the parts. It is maintained that

(I) (824) 2 B &; C 635 at 655.

A •

this finding of Sam•on J. was wrongly set aside by t~ High Court and must be deemed to be still holding the field. Objection is also taken to the amendments allowed by the trial c()urt on remand. In the alternative, it is argued that even the courts below found that properties 983/10,

983/11, 983/12 and 984/54 were admittedly new structures and extensive repairs and replacements had been made in the remaining suit premises which had been destroyed or severely damaged by fire in 1948-49. On account of these substantial alterations and reconstruc- , tions the premises in question had lost their identity and consequently, the principle of apportioment was not applicable.

The first part of the contention basod on the judgment of Samson J. is groundless. The judgment of the fust'trial court was set aside in toto by the Revisional Court, and further by the High Court and the case .was remanded for de novo trial to the trial court which thereafter, decided the case afresh atler allowing the applicant to amend his R.A.

N.S. It is too late in the day any way to argue on the assumption that the findings still survive.

The question whether a certain property has changed its identity after the basic date is largely one o.f fact. The courts bek•w have found that excepting properties 983/10, 983/11,983/12 and 984/54 which were admittedly new structures contructed near about 1948, the rest of the properties, namely 983/1 to 983/9 had not lost their identity. The courts therefore, worked out the economic rent of these new structures by cepitalising their value and gave the landlord a fair return on his jnvestments and fixed their standard rent mainly on that ba•is. It was with regard to the unchanged old properties 983/1 to 983/9 that the High Court and the Revisional Court mainly adopted the method of apportionment. Even so, it allowed the landlord fair return over Rs. 14,448/· being the cost of flooring, ceiling and other fixtures fi<ed t0 property 983/6. Now it is not disputed that on the basic date (Sep tember I, 1940), these properties in question were parts of a larger entity .comprised in a single lease or tenancy in favour of Sound Studios at a monthly rent of Rs. 1700/·, The courts below have therefore taken into account this basic circumstance along with the other relevant facts of the case. We do not find anything so wrong or unfair or untenable in the method adopted by them which would warrant an interference by this Court in the exercise of its special jurisdiction under Art. 136 of the Constitution, Not that apportionment must be applied in all cases a' a rule oflaw but that, if applied along with other considerations dictated by a sense of justice and fairplay, cannot be condemned by this Court as illegal. We therefore, overrule this contention, also.

Lastly, it is contended that the courts below have seriously erred in evaluating the land under the suit properties at Rs. 30/- per sq. yd. on the basis of an instance (Ex. R 6) of the year 1942, while they should have taken into account the value of the land as in the year 1948. It is added that some photo-stat copies of sale-deeds pertaining to the relevant year were produced by Mr. Deweja, architect examined by the Landlord, and the Revisional Court wrongly rejected them as unproved. !It is maintained that in 1948, the market value of the site underneath the

structures was Rs. 120/- per sq. yd. In support of his contention that the value of the land at the date of the letting is the appropriate value to be tak l into account, Counsel has cited Bukmanibai Khunji Cool'erji v. Shfrnarayan Ram Ashre. (1).

We are unable to accept this contention also. The courts below in capitalising the structures, 983/10 to 983/12 and 984/54 did take into account the value of the land married to those properties at the rate of Rs. 50/- per sq. yd; which, according to. their estimate, after adding Rs . . 30/-per sq. yd for escalation, would be t~ market value of that land in the year 1948. Since the rent of the o unchanged properties 983/1 to 983/9 was fixed mainly on apportio ent basis, the courts did not think it necessary to take the value of tl\eir sites separately into computation in fixing the standrard rent. Moreover, there was no evidence on the record to show that the value of the land in question, in the year 1948 was Rs. 120/-per sq. yd. We, therefore, donotthinkit necessary to examine Cooverji's case cited l)y the Counsel. We hwever, do not rule out the propriety of paying regard to eecalation• in land value as put forward by Mr. Cooper, but do hold that this Court will be loath to re-investigate factual ; conclusions not shov.'n to be perverse or manifestly unjust. Such is not the case here.

!For:au the foregoing reasons, we would answrr the question posed for decision, in the affirmative and dismiss these appeals with one set or costs.

V.P.S.

Appeals dismissed

---··---·--- (!) (1966) 67 Born. L.R. 692 ..

March 12, 1974

V. R. KRISHNA IYER

R. S. SARKARIA, JJ.

s. 11

Section 11(1)

Art. 136

K. S. Cooper

M. K. .Shah

P. H. Parekh

Sunanda Bhandare

B. N. Lokur

Rameshwar Nath

Subodh Markendeya

F

SARKARIA

High Court of Judicature at Bombay

Bombay

Sound Studios Ltd.

Sound Studios

Sheraj Ali

Neon Signs (India) Ltd.

National Studios Ltd.

October 23, 1940

National Studios

December I, 1941

Govind Ram Bros. Ltd.

February 27,1948

March 19,1948

March 13, 1954

April 14, 1954

June 11, 1958

July 30, 1958

July 31, 1958

December 4, 1958

Samson

April 2, 1959

s. 129

3, 1961

Aprii 25, 1961

s. 129

September 30, 1964

September, 30, 1964

Art. 226

12/13th October 1971

462/11 p. m.
It is against this decision dated 12/13th October 1971 of the High Court that these apeals have been filed by special leave.

Cooper

s. 11(1)

Lokur

Bombay High Court

section 11

section 11

Section 11

section 5

September 1, 1940

s.

11(1)

Heyden

Narayan/al Bansilal

ss. 2(l)(a) and 13(l)(a)

War Restriction Act

sections 5(8)(b)

March 24, 1915

Billimoria

September 1, 1916

July 31, 1923

Pratt

s. 5

s. 2(1)

Bara Shoe & Co

Dhanrajgirji

Abbot

Cooj

Sam•on

Sep tember I, 1940

Art. 136

Deweja

Cooverji


[A.

S. N. KHARKHANIS & ORS.

'" UNION Or' INDIA & ORS.

March 14, 1974 ·

N. RAY, c. J., P. JAGANMOHAN REDDY, s. N. DWIVEDI,

P. K. GOSWAMI AND R. S. SARKARIA, JJ.J

Co11stitutio11 of India, Art. 309, proviso-Integrating two Class I servicts /Jy Presidential Resolution-Date of integration rnade retrospective by Govern n1e1u's letter-Leg(I[ alidity of subsequent letter.

By Presidential resolution dated 12th August, 1959, the Government or India, under the proviso to Art. 309 of the Constitution, combined two services of Central Excise Service Clnss I and Indian Customs Service Class I with effet from

J 5th August, 1959. All the petitioners joined the respective servfoes with effect from 13th July, 1959. Later by decision dated 7th April 1970 the Government decided that a combined list of seniority of officers in the service should be prepared with re. fere:nce to April I, 1959, as being the date of merger. The petitioners complained that by reason of this they were excluded fron1 the list of officers appointed to the initial constitution to the combined cadre even though they had joined the two separate seryices on 13th July, 1959, with the result that persons junior to them had become seniors.

It was contended that the date of 1st April, 1959 on which the two services were combined for the purpose of inter se seniority was an artificial date chosen arbitrarily and is sought to be given effect to without any legal authority.

HELD : The contention n1ust be uphld. Th.e Government had no authority to override the Presidential resolution by any subsequent decision which lacked legal authority and was violative of Art. 14 of the C:institution. The Presidential Resolu. tion of 12th August, 1959 which drew its authority from the proviso to Art. 309

was clear and categorical in that it not only showed that the question of integra tion of the Central Excise Service Class I and the Indian Customs Service Class I which was older of the two services was under consideration of the Govcrnmenc of India for quite sometime but that "the President has now been pleased to decide that the two services should be constituted into a single service with effect from 15th August. 1959" and that "the services will initially be formed from amongst ail the existing class l officers of the Customs and Central Ex:dse Services who will hence. forth be borne on a single combined cadre for all purposes". The subsequent dcci fiion of the Government conveyed in the lettr of 7th April, 1970 had no legal autho. rity as it was not purported to have been made in the name or with the authority of the President of India nor did it in any wiy seek to :imend the Presidential Resolu tion of 12th August, 1959 nor did it purport to change the date on and from v.hich the integration was given effect to. [594 C; 593 BDJ

Since a final decision was taken on 7th April, 1970 the petitioners coulJ not havt'l come to this Court earlier. [592 H]

ORIGINAL JURISDICTION : Writ Petition No. 286 of 1970.

Under Art. 32 of Constitution of India for the cnfor, c:tlC!'.'. or Fundamental rights.

S. N. Prasad, for the peti1ioners.

G. Das and R. JV. Sachthey, for the respondents.

ARGUMENTS For the Petitioners: By Presidential r.esolution dated J 2th August, A 1959 the Indian Customs Service Class I and the Central Excise Service Class I were integrated with effect from 15th August, 1959. The resolution also stated that "the service will initially be formed from amongst all the existing class I officers of the Customs apd Central Excise Services, who will henceforth be borne on a single combined cadre for all purposes."

The Government took a decision to change the date of constitution of the cadre in 1960. On objections having been raised by the service associations the matter was referred to the Union Public Service Commission in 1967 and on the basis of the recommendations of the Commission a final decision was taken on 7th April, 1970. For the first time in the letter of 7th April, 1970, (st April, 1959 was taken as the date on which the two services were merged and the petitioners made representations against the said arbitrary date. Since after this date some juniors were promoted, the petitioners approached this Court.

As stated in paragraph 5 of the letter of 7th April, 1970 by taking the artificial date of Jst April, 1959 the petitioners have been discriminated against as the direct recruits of the year 1958 have been included in the initial constitution of the service and the petitioners who were direct recruits of the year 1959 and who at the time of the integration of the two services were existing officers and formed t(1e cadre of the combined servic~§ had not been so included.

There cannot be any question of laches as explained above.

For11ze respondent: The decision to merge the two services was taken in March 1959 and an official committee was appointed to determine the inter se seniority. Pending finalisation of seniority list it waS decided to freeze the position as on a particular point of time.

The date chosen was Jst April, 1959 though the formal resolution to merge the two services was published on 12th August 1959. The seniority list published on 6th January, 1960was based on the position as it was on !st April, 1959 and the promotions made in the service after that date have been ignored. Direct recruits who joined the Class I service and officers promoted after Jst April, 1959 did not figure in the seniority list circulated on 6th January, 1959. The petitioners who joined Class I service in July 1959 were rightly not included in.the combined seniority list of 6th January, 1960.

The petitioners have not raised any objection regarding the merger from 1959 to 1970 and it was not open lo them to approach this Court after such long delay.

The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.-Six petitioners, of whom the 4th petitioner has since died. challenge the decision of the first respondent. the Union of India, fixing the principles of seniority of members of the Customs and Central Excise Service Class I as if the combined Service came into ei:istence on April I, 1959, inst<ad of August J 5,, 1959-the date on which the Presidential Resolution dated August 12, 1959 said that the combined Service would come into effect. Petitioners 2, 3, 4 & 6 were appointed as probationary Superintendents of Central Excise Class T in the Central Excise Service Class I with effect from July 13, 1959 on the result of the combined competitive

D •

s. N. KHARKHANIS v. UNION (Jaganmhan Reddy, !.)

59 I

examination held by the second respondent, the Union Public Service Commission, in 1958: (vide notification of the Government of India

(Cntral Excise Establishment) dated August 4, 1959). Similarly, petitioners 1 & 5_ were apponted on the same date, namely, from July 13, 1959, as probat10nary Assistant Collectors of Customs in the Indian Customs. Service Class I on the result of the combined competitive examrnal!on held by the second respondent in 1958: (vide notification of the Government of India (Customs Establishment) dated August 4,

1959) .. The petitioners say that contrary to the Presidential Resolution of August 12, 1959, creating the combined Service of Customs and Central Excise, Class I, comprising of all the existing members of both the Services as from August 15, 1959, the impugned decision of the Government which prescribed the principles of seniority of members of the two individual Services as if the combined Service came into existence on April 1, 1959, would affect their seniority. as they would

b~ considered to be appointed only after the constitution of the combmed Sernce, when in fact they were members of one or other of the two Services on the date when the combined Service was created. As the combined list of seniority of OfficersintheServicewas prepared v ith reference to April I, 1959 as being the date of the merger, the petitioners complain that they were excluded from the list of Officers appointed to the initial constitution of the Indian Customs and Central Excise Service Class I, even though they had joined the two separate Services on July 13, 1969, as a consequence of which persons who would be juniors, if the principles of seniority were made applicable to them, have become senior and have been promoted by overlooking their claims. When the impugned letter dated April 7, 1970 gave time till May 15, 1970, calling on any member of the Service to point out any factual mistakes or errors in the application of the principles enunciated in the said letter, it appears all the petitioners made representations in which they asserted that the integration of the two Services having taken place on August 15, 1959, and not on April\, 1959, they were entitled to be included in the initial constitution of the .combined Service and on the application of the principles enunciated in.the said letter no distinc_tion could be made between the direct recruits appointed to the Indian Customs Service Class I and the Central Excise Service Class I in the years 1955 to 1958 and the direct recruits appointed to the said two Services in the year 1959. In their representations the petitioners had claimed that they be placed above respondent 3 and requested that till this matter was decided promotions from the combined seniority list below Serial No. 73 should not be made, but in spite of this request, even before the date calling for representations expired, some Officers were promoted on May 11, 1970, without considering their claims.

The first respondent in its counter affidavit stated that the idea of having a separate Class I Service for the Central Excise. Department was mooted for the first time in 1944, but the final constitution of the Central Excise Service Class I took place only with effect from July l, 1955; that after the idea of constituting a Central E:<cise Service was mooted in 1944 the first respondent says that training in central excise work was given to Officers recruited to the Indian Customs Service and

even right from !950 tho notifioation i; sued by the second re; pondent for the com'.>ined I. A. S. Etamination stated that the direct re:ruitment was to the Indian Customs and Excise Service even though there was no su :h service in existence upto July 1, 1955 and tbai even after the formation of the Service with effect from July I, J 955, anj upto its subsequent integration with the Indian Customs Servi; e in 1959 the notification issued by the seconj re<pondent stated that the recruitment was to the Indian Customs and Central Exci; e Service Class I and not. to the Indian Customs Service and the Central Excise Service separately, though the actual allocation of the candidates between the two Services was made by the Department of Revenue. It was also stated that the order constituting the Central Excise Service Class I with effect from July 1, 1955, provided that future vacancies in the grade of Sup:rintendent of Central Excise Class I will be filled up by direct recruitment and promotion in the ratio of 1 :1 and that when the final decision to merge the Indian Customs Service Class I and the Central Excise Service Class I was taken by the Government in March 1959, an Official Committee was set up to make recommendations regarding the determination of inter se seniority in the merged service of the offic.rs in position in the two constituent Services atthe time ofintegration. As the finalisation of the seniority list was expected to take some time it was felt desirable to freeze the position of officers in the two departments as on a particular point of time so that changes introduced thoreafter in one Service did not affect the members of the other Service on a lasting and irretrievable basis. Accordingly the date, April 1, 1959, was chosen though the formal resolution to merge the two Services was published only on August 12, 1959. The counter of the Union of India further stated that as the seniority principles enunciated by the Government in their letter of January 6, 1960 had raised a controversy, the Government referred the matter to the second respondent under Art. 320 (3) (b) of the Con•titution, and ultimately the letter of April 7, 1970 was issued accepting not only the principles evolved by the second respondent, but also the date April 1, 1959, as the date on which the integration of Services were to come into effect as previously indicated in the first respondent's letter of January 6, 1960.

An objection was sought to be taken on the ground that there was an inordinate delay in the petitioners' presenting the writ petition after over ten years even though the letter of January 6, 1960 stated that the decision taken by the Government was final.

Th~ petitioners countered this objection by pointlng out, firstly, that the Jetter of January 6, 1%0 was addressed to the Heads of Departments who G were asked to communicate the decision to those officers whose names figured in the list and since the petitioners were appointed after April 1, 1959, their names did not appear and the decision was not_ communicated to them, secondly, the letter of April 7, 1970, itself clearly stated that everything done earlier by the <!overnment was prm isiona!. It is, therefore, urged that as right from !he beginning objections had been taken by the H Service Assoc1attons regarding the principles enunciated in the lttter of January 6, 1960, and the Government itself had called

...

s. N, KHARKHANIS v. UNION (Jaganmha11 Reddy, J.) 593

upon the Service Associations by its letter of June 20, 1961, to enunciate theprinciplesthey consideredfair in fixingtheseniority, in compliance to which objections were being urged, the petitioners cannot be held to have committed any !aches. Taking into consideration the respective contentions it appears to us that having regard to the stand taken by the Government and the admissions made by it in the letters subsequently written that the proposals set out in the letter of January 6, 1960, were to be treated as provisional, the petitioners could not have come to this Court earlier till a final decisidn was made on April 7, 1970.

Accordingly the preliminary objection is not sustainable.

The petitioners' only objection to the decision of the Government conveyed in the letter of April 7, 1970, is that the date, April I, 1959, on which the two Services were said to have been merged for the purposes of inter se seniority was an artificial date chosen arbitrarily and is sought to be given effect to without any legal authority. It appears to us that this contention must be upheld. The Presidential Resolut1on of August 12, 1959, which draws its authority fromthe proviso to Art. 309 of the Constitution is clear and categorical in that it not only shows that the question of integration of the C'<ntral Excise Service Class I and the Indian Customs Service Class I which was tl:J.e older of the two Services was under consideration of the Government of India for quite some time, but that "The President has now been pleased to decide that the two services should be constituted into a single service with effect from the 15th August, 1959." It also states that "The Service will initially be formed from amongst all the existing Class I officers of the Customs and Central Excise Services, who will henceforth be borne on a single combined cadre for al\ purposes." (Emphasis ours). It is not denied that the petitioners were members of the respective services on August 15, 1959, and consequently the ruleuelating to seniority should be applicable to them in the same way as to those recruited in 1958. The subsequent decision of the Government conveyed in the letter of April 7, 1970, has no legal validity, as it was not purported to have been made in the name or with the authority of the President oflndia, nor does it in any way seek to amend the Presidential Resolution of August 12, 1959, nor does it purport to change the date on and from which the integration was given effect to. On the contrary, three days after the Presidential Resolution of August 12, 1959, intimating that the President bad decided that the two Services should be constituted into a single Service with effect from August 15, 1959, and from henceforth, namely on and from August 15, 1959, all persons borne on the respective Services will be borne on a single combined cadre, the Deputy Secretary to the Government of India, Ministry of Finance, wrote to the President of all India Central Excise Officers Association and the President, Indian Customs Service Association, informing them that the Presidential Resolution was published in the Gazette. This letter further explained the import of that Resolution thus :

"Since it is the Government's intention that so far as possible,. the existing normal expectations of promotion of Officers •.n he cadre .posts of the two Deparlmentsshould be secured, 1t 1s proposed to safeguard a suitable number of cadre

posts of the two Departments, based on the strength of such posts on a particular date, to the officers of such Department, for' a limited p>riod. This particular date will be the beginning of the current financial year, viz. !st April, 1959. What is being safeguarded is the number of posts of particular status irrespective of whether they are actually held by the officers of a Department in that Department or elsewhere. This safeguard will be necessary only in the supervisory posts of the Deputy Collectors ana above of each Department. Posts arising in the two Departments after !st April, 1959, deputation posts and other ex-cadre posts, can obviously not be the subject of any safeguard.

With the merger, the t\>O services will become one and offiters of the combined service, as a whole, will be co-sharers of the future prospects and vicissitudes of the combined service."

Even in this letter, l st April, 1959, has not been shown as the date Oil. which the two Services were to be integrated, but only that it was proposed to safeguard a particular number of posts in the Department on a particular date, namely, !st April, 1959. No mention has been made, in supersession of the Presidential Resolution, that Jst April, 1959 will be the date of the merger of the two Services. In any case, it is clear that the Government has no authority to override the Presidential Resolution by any subsequent decision which lacks legal authority and is violative of Art. 14 of the Const.itution oflndia.

In this view. the petition is allowed with costs. The Government is directed to give effect to the Presidential Resolution of August 12,

1959, in respect of integration of the two Services from August l 5, 1959, and to apply the principles of seniority to the petitioners as if they were members of the respective Services which were integrated after their appointment in July 1959.

P.B.ll.

Petition allowed.

S. N. KHARKHANIS & ORS

UNION Or' INDIA & ORS

N. RAY

P. JAGANMOHAN REDDY

s. N. DWIVEDI

P. K. GOSWAMI

R. S. SARKARIA, JJ

Art. 309

Art. 309

5th August, 1959

13th July, 1959

7th April 1970

1st April, 1959

Art. 14

12th August, 1959

Art. 309

15th August.

7th April, 1970

India

Art. 32

Constitution of India

S. N. Prasad

G. Das

R. JV. Sachthey

Union Public Service Commission

6th January, 1960was

6th January, 1959

6th January, 1960

JAGANMOHAN REDDY

Union of India

Union Public Service Commission

April 1, 1959

July 13, 1969

April 7, 1970

May 15, 1970

August 15, 1959

April\, 1959

May 11, 1970

July l, 1955

I. A. S. Etamination

Indian Customs and Central Exci

Indian Customs Service

Central Excise Service

July 1, 1955

August 12, 1959

Union of India

January 6, 1960

Art. 320

April I, 1959

Art. 309

Government of India

15th August, 1959

Customs and Central Excise Services

Ministry of Finance

Indian Customs Service Association

st April, 1959

Jst April, 1959

Art. 14

August 12,

1959

August l 5, 1959


GOOULA

GURUMURTHY & ORS.

KURIMETI AYYAPPA

March 14, 1974

[(K. K. MATHEW

AND A. ALAGIRISWAMI, JJ.]

Hindu Law-Limited estate of a widow-Whether ; ncom• fro111. tire.-· lf11sb0nd'~·,· estate is an accretion to that estaU'.

V, the father of the appellants had a brother R who died child.Tess leaving behind bim his widow, N. After R's death a series of litigatien started between V &: N.

V filed a suit in 1913 against R. for waste committed by hr husband's est<1; te and w.as appointed a receiver in that suit. Jn that suit, be got a decree, V as rcce1 \"Cr filed 3 suits on the foot of 3 mortgages in favour of R. In execution of the decrees, 3 valu able properties were purchased. These three properties are the subject matter of the present appeal.

V died in 1947 and Nin 1951 after executing a will bequeathing in favour of her brother S all her properties. S filed the suit out of which this appeal arises, for Possession of the properties bequeathed to him under the will and for mesne profits.

The Sub-judge held that the said properties became accretions to the main estate of R and therefore, the plaintiff was entitled only to an account of the income from these properties till the death of V. On appeal, the High Court allowed the apP:eal in part. Before this Court four points were raised by the appellants :-(1) The H!gh Court committed an error in not hearing the whole appeal but confining the hearing merely to the points on which the finding was called for from the lower court. (2) a portion of the properties which was lost to the estate due to N's negligence of not paying the land revenue, should be debited against her share in them. (3) the cost incurred by V in the suit and in the execution proceedings should have been taken. into account in allocating the properties between the appellants and the respondents and (4) that the widow N, had treated the properties as accretion to the husband's estate and therefore, the appellants are entitled to the whole of the property.

Allowing the appeal,

HELD : (I) When a finding is called for on the basis of certain issues framed by the Appellate Court, the appeal is not disposed of either in whole or in rart. Therefore the parties cannot be barred from arguing the whole appea after the •findings are received from the Court of first instance. f597 E]

Gopi Nath Shukul \'. Sat Narain Shukul, A.LR. 1923 A11ahabad 384, referred F to.

(2) A Hindu widow is entitled to the full beneficial enjoyment of the estate ..

So long as she is not guilty of wilful waste, she is answerable to no one. In her lifC.

time~ the reversionary right is a mere possibility or spes successionis. It cannot be predicted who would be the nearest reversioner at the time of her death. It is there~ fore, impossible t_o contend that for any loss to the estate due to the negligncc on the part of the widow, he should be compensated from out of the widow's separate

poperties. He is entitled only to the property left on the date of the death of the G widow.

(599 C; FG] · · · ·

(3) The Income received by V and the amounts spent for tlic suit and the execu~ tion proceeding were taken into account at the time of settlement of accounts and it wa.s open to V to realise the excess amount from the estate of R. It is not now open to the appellants to claim that these amounts should be separated from the amount of the decree and should be added to the amount of principal and interest accrued during the lifetime of R. (600 AC] -

(4) Fro!" the evidence, it is clear that the wi<!ow did not show any intention to treat the 1ncame from the husband's estate asan accretion to that estate. {601D]

Akkanna v. Venkayya, I.LR. 1902 25 Mad. 351, referred to.

The appeal was sent back to High Court for hearing afresh.

CIVIL APPELLATE JUJUSDICTION: Civil Appeal No. 1817 of 1967.

From the judgment and Decree dated the 21st September 1965 of 1.he Andhra Pradesh High Court in A.S. No. 508 of 1959.

K. R. Choudhury and Veena Khanna, for the. appellants.

M. K. Ramamurthi and J. Ramamurthi; for the respondent,

The Judgment of the Court was delivered by

ALAGIRISWAMI, J.-Venkanna, the father of the appellants, had a brother Ramamurti who died childless in the year 1908 leaving behind Jiim his widow Narasimham. After Ramamurti's death a series of litigations started between Venkanna and Narasimham and it is not over yet. Venkanna filed O.S. No. 14 of 1913 against the widow in respect of acts of wastecommittea by her of Ramamurti's estate and was appointed a receiver in that suit. Ih that suit he got a decree against Narasimham for a sum of Rs.13,539,1as she failed to furnish security as originally decreed by the court. Venkanna as receiver filed three suits on the foot of three mortgages in favour of Ramamurti. One was O.S. No. 34 of 1916. In execution of that decree item 1 of the 'A' schedule properties was purchased in court auction. O.S. No. 443 of 19 I 8 was filed on the foot of another mortgage in favour of Ramamurti. executed in 1904 and items 2 and 5 of the plaint schedule properties were purchased in execution of decree in that suit. These three items of properties are the subject matter of this appeal. It is unnecessary for the purpose of this app.al to refer to. the third suit.

Venkanna died in 1947 and Narasimham in 1951 after executing a will bequeathing in favour of her brother Venkata Sattayya all her properties. Venkata Sattayya filed the suit, out of which this appeal arises, for possession of the proporties bequeathed to him under the will and for mesne profits. The Subordinate Judge who tried the suit held that items 1, 2 and 5 become accretions to the main estate of Ramamurti and therefore the plaintiff was entitled only to an .acoount of the income from those properties till the death of Venkanna. The appeal against the Subordinate Judge's judgment came up for hearing before Justice Satyanarayana Raju and Justice Venkatesam of the And.bra Pradesh High Court. The learned Judges called for a finding with regard to the interest on the two mortgages in execution of the decrees in which items I, 2 and 5 had been purchased, relating to the period before Ramamurti's death and the period after Ramamurti's death. After that finding was received they allowed the appeal in part and held that the plaintiff would be entitled to a 19/34th share of item l, and 12/23rd share of items 2 and 5. This appeal is filed in pursuance of a certificate granted by the High Court.

Mr. Ramasesneya Chaudhri appearing on behalf of the appellants raised four points which we. shall deal with seriatim.

I. The learned Judges of the High Court committed an error in H <:onfining the appeal after receipt of the finding from the Subordinate

Judge's courtonly to the question of the share, which the appellant• and the respondent were entitled to, based on the calculation of the

G, GURUMURTHY v. K, AYYAPPA (Alagiriswami, J.) 597

interest due on the mortgages before and after the death of Ramamurti.

His contention was that as the High Court had merely framed issues and referred them for tdal to the court of first instance under Order XLI Rule 25 of the Code of Civil Procedure and not remanded the whole case under Order XII Rule 23, they should have heard the whole appeal and not confined the hearing merely to the points on which the finding was called for. We think that he is right in thi> contention. Before the High Court the learned advocate for the appellants had contended that Narasimham owed to the estate ot Ramamurti a sum of Rs.14,639/- and that when the decree was sought to be executed by Venkanna, Narasimham claimed that the accouat due to her by way of interest under the three mortgage bonJs should be set off and that the execution could proceed only for the balance that the set off claimed by Narasimham was actually allowed and that therefore she would not be entitled to any share in the properties purchased in execution of the decrees obtained on the foot of the mortgage bonds, in lieu of the interest claimed. The learned Judges disallowed him from raising that question on the ground that it was not raised or argued at the time when the finding was called for on the issues framed by them, and that if it had been raised and accepted there would have been no need to call for a finding or at any rate the finding called for would have been different, and that the argument of the learned counsel impugned the correctness of the conclusions reached by the Court on the basis of which the findings were called for.

We consider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part. Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance. We find the same view taken in Gopi Nath Shukul v. Sat Narain Shukul (AIR 1923 Allahabad 384) where it was held that: ·

"Where an appellate Court at the first hearing does not decide the case but merely remits certain specific issues, it is open to the Court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order." It was also held that:

"An order remanding issues under Rule 25 is not a final order. No appeal lies againstit. The responsibility for the decree ultimately passed is entirely that of the Court before which the case comes after remand.

H It -is quite oterwise with an order of remand passed under Order 41, Rulo 23, for this is an order which does finally determine, subject to any right of appeal, the issues which it decides.''

A similar view was talcen by the Nagpur High Court in- Sultan

Beg v. Chuni/al (AIR 1918 Nagpur 193). In Abinruh Chandra Bidyanidhi iJhattachariee v. Dasarath Malo (XXXll (1927-28) Calcutta Weekly Notes 1233) it was said:

"An order of remand made under Or. 41, r. 25 decides nothing. The Court, either the same or as differently constituted has jurisdiction, while finally hearing the appeal, to go back on' the reasons given or views expressed in he order of remand and must do so when those appear erroneous."

We are, therefore, of opinion that the High Court should have gone into this q11estion and decided the matter, for if it turns out that the interest due on the two mortgages subsequent fo the death of Ramamurti had been set off against the amount due to Venkanna in the decree obtained hy him against Narasimham in O.S. 14 of 1913 there can be no ques•ion of Narasimham being entitled to any share in the properties purchased in court auction in execution of the decree in the two mortgages and her brother getting those properties by virtue of the will executed by her in his favour.

In the Trial Court the plaintiff's contention was that these properties were purchased out of the accumulated interest on the mortgages and the defendants asserted that they were purchased out of the principal. That Court dismissed the plaintiff's claim on the ground that there was no proof of his allegations. It was before the High Court apparently th.t the attempt to split the iterest due on the 1nortgages into two portions, one before Rmamurt1 s death and the other after, was made and accepted by the High Court. It was on that basis that the High Court called for findings.

After the findings were received the appellants raised the question about the set-off. They raised the question before .the Trial Court when it "'.as considering the apportionment of the interest but that Court felt 1t had no power to go into that question in view of the terms of the High Court's order calling for the finding. And the High Court refused to allow the appellants to raise that question, which as we have just held was not correct.

The decree in Venkanna's suit. appears to hve directed payment of interest to NaraSJmham [Para m (c) of the plamt and judgment of the High Court, page 102 of the paper book].

We find that Venkanna had submitted accounts to the court in his capacity as receiver till 1940.

We have also evidence in this case that even \'Vhen Venkanna died a sum of Rs.4,486/- was due to him on the foot of the decree he obtained against Narasimham. It is, therefore, highly unlikely that any amount due to Narasimham was not given credit to. We find from the finding submitted by the Trial Court (Page 86 of the paper book) that when the decree in 0.S. 14 of 1913 was sought to be executed Narasimham claimed that the amounts due to her should be set off and execution should proceed only for the balance and from Ex. A-7 it would appear that the claim was allowed. It seems therefore un- Hkely, ta!<ing the direction in te decree and the ordr evidenced by .Ex. A-7 mto account, that the rnterest due to Narasimham was not

G. GUllUMURTHY v. K. AYYAPPA (A.lagiriswami, /.) 59f!

one of the items set off. We do not want to express any final opinion on the point but are of 0pinion that in the circumstances the High Court should consider this aspect of the matter and dispose of the appeal af1 esh.

2 Out of about 16 acres comprised in item I, 5 acres had been lost in revenue sale because of Narasimbam's failure to pay the land revenue on those lands. It was urged before the High Court and it has geen urged again before us that in allotting to the appellants a share of items I, 2 and 5 these 5 acres which were lost to the estate as a result of Narasimham's negligence should be debited against her share in them. We find ourselves unable to accept this contention just as the High Court, though they imve no reason for their conclusion.

Neither on principle nor on authority could the contention on behalf of the appellants be suppo1ted.

A Hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is not guilty of wHful waste, she is answerable to no one. Her estate is not a lifeestate, because in certain circumstance• she can give an absolute and complete title. Nor is it in any sense an estate held in trust for reversioners. Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to no one.

She fully represents the estate, and, so long as she is alive, no one has any vested interests in the succession. The limitations upon her estate are the very substance of its nature and not merely imposed upon her for the benefit of reversioners. She is in no sense a trustee for those who may come after her. She is not bound to save the income, nor to invest the principal. If she makes savings, she can give them away as she likes. During her lifetime she represents the whole inheritance and a deci>ion in a suit by or against the widow as representing the estate is binding on the reversionary heirs. It is the death of the female owner that opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to 'possession. In her lifetime, however, the reversionary tight is a me>e possibility or spes successionis. It l:annot be predicted who would be the nearest reversioner at the time of her death. It is, therefore, impossible for a reversioner to contend that for any loss which the estate might have sustained Clue to the negligence on the part of the widow he should be compensated from out of the widow's separate properties. He is entitled to get only the property left on the, date of the death of the widow.

The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate. The reversioner's right to institute a suit to prevent waste is a different matter. If it could have been established .that in having allowed some part of the properties to be sold in revenue sale she was guilty of wilful waste it would have been a different matter.

It would still have been necessary for the reversioner to have instituted a suit on that basis. It is dou\>tful whether such a suit can be institoted after her death. In any case the necessary averments are not availabl€ in this suit. We are, therefore, unable to accept this contention

3. Another point urged before the High Court as well as before us wu that the cost incurred by Venkanna in the suit and in the execution proccedinas should have been taken into account in allocatina

items I, 2 and 5 between the appellants and the respondent. The High Court took the view tl)at as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/· as the amount due on settlement of account, and it was peon to Venkanna to realise the amount aeainst the estate of Ramamurti in execution of the decree, it is not now open to the appellants to claim that these should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti.

We agree with this view. Incidentally it should be noticed that the conclusion of the High Court on this point would seem to point to the same conclusion in respect of the first point.

4. Lastly, it was argued that Narasimham, the widow, had treated thi• property as accretion to the husband's estate and therefore the appellants are entitled to the whole of the prorty. The facts on the basis of which this contention is urged are :

(a) When Narasimham's life interest in the estate was sold in E.P.

No. 93 of 1927 filed by Venkanna she did not question the legality of the sale on the ground that her interest in the property was not a life interest but was a full interest.

(b) Jn the order in E.A. 624 of 1935 passed by the Subordinate Judge, Visakhapatnam the widow treated items I, 2 and 5 as part of the estate of her husband and she had also asserted therein that she had a right to enjoy the same as representative of his estate.

(c) Life interest in the A-Schedule properties was sold in E.P. 28 of 1940 in execution of the decree in 0.S. 14 of 1913 and the widow did not object to the sale on the &round that what was J; e.ing sought to be sold was a life interest but that she was entitled to full interest.

We do not think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husband's estate .. As observed by the Madras High Court in Akkanna

v. Vtnkayya (l.L.R. (1902) 25 Mad. 351) "the acquirer of property presumably inte.nds to retain dominion over it and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husb•nd's property, was at her absolute disposal. In the case of property inherited from the husband, it is not by reason of her intention but by reason of the limited nature of a widow's estate under the Hindu Law, that she has only a limited power <>f disposition. But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she ml)sl be pres.urned to retain the same control over the investment of such income. The mere fact that properties t.hus acquired by her are managed and en-

G. GURUMUTHY V. K. AYYAPPA (Alagiriswami, /.) 601

joyed by her without any distinction, along with properties inherited from her husband, can in no way effect this presumption. She is the sole and separate owner of the two sets of properties so long as she enjoys the same, and is absolutely entitled to the income derived from both sets of properties." The fact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question.

It was to her advantage to keep qujet. She was not thereby cstopped from contending that she had an absolute interest in the properties.

It should, more over, be remembered that the question that the items 1 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husband's estate and the widow in that property was really a later development. Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier. The widow was all along• doing everything to prcvent; her husband's reversioners getting anything from the estate.

She had transferred quite a good part of it to her '1brother, which was what enabled the reversioner to file the suit against her for acts of waste.

She exhibited a very clear intention that whatever she possessed should So to her brother. There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husband,'s estate as an accretion to that estate.

In the result the appeal is allowed and the judgment of the High Court set aside. The High Court will dispose of the appeal afresh.

The costs of this appeal will abide and be provided in the fresh decree to be passed by the High Court.

C.M.P. No. 2016 of 1969 is dismissed.

s.c.

Appeal allowed.

10-'-M45Sup.Cl/75

GOOULA

GURUMURTHY & ORS

KURIMETI AYYAPPA

March 14, 1974

K. K. MATHEW

A. ALAGIRISWAMI, JJ.

Gopi Nath Shukul

Sat Narain Shukul

K. R. Choudhury

Veena Khanna

M. K. Ramamurthi

J. Ramamurthi

ALAGIRISWAMI

Ramamurti

Jiim

Narasimham

Venkanna

Venkanna

Venkata Sattayya

Satyanarayana Raju

Venkatesam

And.bra Pradesh High Court

Ramasesneya Chaudhri

the Code of Civil Procedure

Nagpur High Court

S. 14

NaraSJmham

\'Vhen Venkanna

S. 14

Narasimbam

Narasimham

S. 14

Madras High Court

G. GURUMUTHY V. K. AYYAPPA


IRLAPATJ

SUBBAYYA v.

THE PUBLIC PROSECUTOR, ANDHRA PRADESH

March

I 4, I 974

[M.H. BEG AND Y.V. CHANDRACHUD, JJ.)

Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act 1910- Appea/ again.rt acquittal-Duty of the High Court while inerfering with the acquittal.

The appellant was charged for offences punishable under sections 302, 32S and 323 read with sec. 34 of the J.P.C. along with three others. The Sessions Court acquitt ed the appellant. The High Court set aside the acquittal and convicted the appellant upon the plea of the appellant that the Hih Court had erred in its appreciation of evidence. The Court went through the entrre record for itself as the appellant had .approached the Court under the Criminal Jurisdiction newJy created.

Allowing the appeal, HEW : (I) That1 the conviction by the High Court was not based on complete er comprehensive 21ppreciation of all features of the case, which, taken together cast a reasonable doubt on the prosecution version. There was CJnsiderable uncertainty .about the time and the place at which the incident took place. The evidence of the witnesses that there was considerable bleeding from the injury of the deceased was inconsistent with total absence of blood at the place of occurrence. The prosecution tried to prove that there were 3 blows struck on the head of the deceased, but this was not supported by the medical evidence. [b06C; BJ (JI) Held further that the High Court failed to attach due weight to the assessment of evidence by the trial court which had the additional advantage of seeing the witnes.scs depose in the witness box. {606D]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 229 of 1970.

From the judgment and order dated the 29th September, 1970 of the Andbra Pradesh High Court at Hyderabad in Criminal Appeal No. 891 of 1969.

K. T. Harindranati and G. S. Rama Rao, for the appellant.

P. Ram Reddy and P. P. Rao, for the respondent.

The Judgement of the Court was delivered by F

BEG J.-The appellant was charged, with his three brothers-in-Jaw, Bayyarapu Butchiah, Bayyarapu Chandriah, and Bayya1apu Kotayya for offences punisbhable under Section 302, 325, and 323 Indian Penal

Code each read with Section 34 Indian Penal Code, for having murdered Irlapati Ramayya aRd causing grievous hurt to Ankayya, P.W. 2, and simple injury to China Veerayya, P.W. I, at about 4.30 p.m., on 15-6-69, G in front of house of Vipparla Peda Veerayya in Village Vipparla. District Guntur in the State of Andhra Pradesh. They were .tried and acquitted by the learned Sessions' Judge of Guntur who attached considerable importance to the supposed delay in lodging the First Information Report of the alleged occurrence af 10.30 p.m. on 15-6-69 at Police Station, Sattonapalli, 13 miles away from the scene of the incident. The prosecution had a sufficiently good explanation for the H supposed delay inasmuch as the wife and other relations of the deceased were busy trying to gt! adequate medical attention for the deceased before thinking of making the F.J.R. The High Court had, on an

:<:t '"I w ta "

appeal to it, C)nsidered this and other questions involved in the case and convicted and sentenced the appellant under Section 302 to life imprisonment and awarded other appropriate sentences under Sections 325 and 323 I.P.C. to him. The High Court had convicted the three other co-accused under Sections 323 and 324 I.P.C. only and had sentenced them to a fine of Rs. 150/- only, and, in default of payment Df fine, to three months rigorous imprisonment. Consequently, the appellant, had his right to appeal to this Court against the reversal of the order of his acquittal. The co-accused, Mt being in that advantageous position, could not obtain any special leave to appeal.

As this is an appeal, in exercise of a newly created right of appeal to this Coµrt, we have examined the evidence on record. The points raised on behalfof the appellant, on this evidence, are mentioned below.

Firstly, it is pointed out that P.W.I, P.W. 2, P.W. 3, and P.W. 4, as well as P.W. 10, and P.W. 11, are relations of the deceased; highly interested in securing the convictions of the appellant on account of partisanship. It was urged that P.W. 5 and P.W. 6," were wrongly treated as alleged "independent witnesses" by the High Court. It \Vas suggested to the prosecution witnesses, in the course of their cross.- examination, that the real occurrence took place elsewhere and consisted of long drawn out stone pelting by two sides during the day in the course of which both sides were injured. In support of this version, reliance was placed upon several tell-tale, or, at least, highly suspicious circumstances which were not adequately explained by the proseoution. Secondly, no blood was found anywhere near the Neem tree in front of the house of P.W. 3, Peda Verrayya, where the occurrence is said to have taken place. Thirdly, it was establihsed, from the statement of the investigating officer, that the trunk of the Neem tree under which the alleged occurrence took place was about 5 to 6 ft. high so that no lathis could be lifted and brought down to beat the injured without obstruction by brarrches as was admitted by Lakshmayya. P.W. 4, and China Veerayya, P.W. I. Fourthly, the site plan showed quite a number of stones lying at some d, istance from the scene of occurrence. Fifthly, a number of independent witnesses, apart from the ones examined, (who are all characterised by the appellant's Counsel as "partisan witnesses",) were said to be available but not examined. Although this was admitted as a fact in the Committing Magistrate's Court by P.W. I, a new version was, it was submitted, given at the trial. Sixthly, there were injuries upon the appellant's body which had not been explained by the prosecution version although a belated attempt had been made by Lakshmayya, P.W. 4, at the trial to explain these injuries by alleging that the four injuries, all on the head of the appellant, which, according to the Doctor, could be caused by stone throwing also, were caused by P. W. 4.

This new version was, it was urged, incredible in view of the prosecation case of th< aggressiveness of the accused and youthfulness of P. W. 4, aged 22, who admitted that he had run away as he was afraid of being beaten and was chased. It was pointed out that this attempt to explain the injuries on the head of theappellant was

neithr consistent with the earliest prosecution version nor \\iith

statements of other prosecution witnesses where no such incident is mentioned. It was, therefore, submitted that this belated attempt was not an explanation at all but only an indication of falsehood and fabrication in the case.

Seventhly, we were taken through the statements of prosecution witnesses, P. W. I, P.W. 2, P. W. 3, P. W. 4, P.W. 5, P.W. 6, as to the time of the occurrence which was variously stated by them to have taken place at different times between noon and just before sunset.

This was certainly a most unusual variation which rould not be explained by mere inability of villagers to give the exact time, The villagers had described the time by reference to "baras" before sunset and the colour of the sun which was described as red by one witness so that it was nearing sunset. according to him, at the time of the occurrence. This feature of the evidence was more consistent with some long drawn out occurrence such as stone throwing or with the fact that all the alleged witnesses could not be there. In any case, they could not be there at the same time. Their versions, therefore, appear highly suspicious. Eigbthly, there were variations in the statements of witnesses about the time and place at which China Veerayya, P.W. I and Ankayya, P. W. 2, were said to have been beaten. Sayamma, P. W. IO, for example had stated that Ankayya, P. W. 2 was beaten at a distance of IO to IS yds. from the house of Peda Veerayya, P.W. 3 at the junction of North South streets and East West street. Sub-Inspector Perayya, P.W". 22 stated that this junction was about 60 to 70 yds. from the house of Peda Veerayya. Venkamma, P.W. 12 bad stated that the place where Ankayya, P.W. 2 fell was at a distance of only I or 2 yds. from the house. of Peda Veerayya, P.W. 3. According to the appellant's Counsel, the cumulative effect of the features mentioned above and of even minor discrepancies which would, in a different context, be quite unimportant, was to indicate that the witnesses had not really seen or described the occurrerce as it took pkce but were putting forward a substantially incorrect version.

In reply, some attempt has been made to explain the absence of blood from the scene of occurrence by pointing out that China Veerayya, P.W. I had stated that the deceased had a head gear. If that was so, the extent of the injury on the head was really difficult to reconcile with the post mortem report which described the injuries of Ramayya, deceased as follows;

"I. Lacerated injury scalp 8 cm x I cm. placed over internal parietal area in anterior posterior direction. Cephalo hematoma present extending over left parietal, G occipital, right parietal and temporal areas.

2. Contusion of size 8 cm x 5 cm. over outer and upper part of left fore arm.

3. Three small superficial abrasions anterially below right knee joint".

H The Doctor had also stated :

"On dissection of injury No. I showed extensive aphalo hematoma involving left parietal, occipatal and right parietal

; F

and temporal areaa comminuted depressed fracture of vault of scalp involving frontal bone 5 cm. in anterior posterior direction. Part of the left perietal bone detached and broken into three pieces and lying loose over brain fissured fracture extending upto left temporal bone. Right' parietal bone fractured transversely uptQ thr.ee centimetres, occipital bone fractured and. fissure fracture placed obliquely towards right for 3 ems.

Bram membrances found contused shOwed no lacerations".

It was urged that a "hematoma" does not produce much bleeding.

We do not think that the injuries alleged have been inflicted on the head with sticks are of such a nature that they would not produce considerable bleeding. Jn fact, the Doctor said that the scalp was covered with blood. Therefore, the attempt to explain the mysterious absence of any blood from the alleged place of occurrence is rather feeble.

We also find that theaccount given by the prosecution witness does not fit in with the medical evidence inasmuch as not only was the appellant said to have beaten the deceased with a stick on his head but another accused was said to have poked him on the chest with his stick firt and then beaten him on his left hand, still another accused was alleged to hB;'e given a blow with a stick on the forehead of the deceased, and the fourth accused was said to have struck the deceased on the left side of the head just above the ear. The three injuries indicated above show that no blow was struck on the forehead of the deceased at all. The superficial abrasions below the knee could be very well due to the falling. Thus, there were really only two injuries on the head. It may be that the first injury was due to more than one blow on the head. The Doctor was, however, not questioned on this aspect. There were, in any case, certainly not four injuries on the body of the deceased.

The Doctor who performed the post mortem had said that the injury which caused the death could be due to striking the deceased's head with a blunt object like a stick but that "it is also possible that injury No. I could be caused by "a stone of 3" or even more". The Doctor admitted that injury on the knee could be ca11sed by a fall on a rough surface. He found the scalp was so profusely covered with blood that he could not completely examine the injury.

Thus bleeding appears to have been con&iderable. Hence, absence of blood from the alleged place of occurrence appears' to us to carry a significance which the High Court ignored.

We may also mention that the nature of the incideDt set up by the prosecution itself shows that there was a dispute over the possession and construction of a house for the repairs of which about 400 stones had been collected. On an occasion prior to the actual occurrence, the appellant was said fo have been obstructed from carrying stones. It was alleged that he had, for this reason, ~~1lten Sayamma and her mother who were said to have obstructed him.

A constable was said to have come to the village at about noon on

the day of occurrence to investigate, ild, thereafter, the incident is alleged to have taken place. The incident alleged by the prosecution certainly did not occur while the constable was still there.

There is considerable' uncertainty about the time as well as the place at which the incident took place. Furthermore, the injuries on the appellant had not been explained. Apart from the features mentioned already, we find that the village Munsif, who was available for a complaint about the incident was not informed.

This suggests that the party of the prosecution witnesses had something, like stone throwing by them, to hide. The deceased was also not taken to the nearest dispensary to get his wounds dressed.

We are, therefore, not satisfied that the High Court Jhad rightly interfered with the order of acquittal passed by the 1rial Court The view of the High Court is not based on a complete or comprehensive appreciation of all the features of the case which taken together, cast a reasonable doubt on the prosecution version. It is well established that, in an appeal against acquittal, the appellate Court ought to attach due weight to the assessment of evidence by the Trial Court which has had the additional advantage of seeing the witnesses depose in the witness box.

We, therefore, allow this appeal and set aside the"conviction and sentence of the appellant who shall be set free forthwith unless wanted in some other connection .

S: B. W.

Appeal allowed.

' '

IRLAPATJ

SUBBAYYA

THE PUBLIC PROSECUTOR, ANDHRA PRADESH

M.H. BEG

Y.V. CHANDRACHUD, JJ.

sections 302, 32S and 323

sec. 34

K. T. Harindranati

G. S. Rama Rao

P. Ram Reddy

P. P. Rao

F

BEG

Bayyarapu Butchiah

Bayyarapu Chandriah

Bayya1apu Kotayya

Section 302, 325

Code

Section 34

Indian Penal Code

Irlapati Ramayya

Ankayya

China Veerayya

Vipparla Peda Veerayya

Section 302

Sections 325 and 323

I.P.C

Sections 323 and 324

I.P.C

Peda Verrayya

Lakshmayya

Sayamma

Peda Veerayya

Perayya

Venkamma

Ramayya

Sayamma

Munsif