I 160

SEY ANTILAL KARSONDAS MODI

STATE OF MAHARASHTRA & ANOTHER

January 30, 1979

[S. MURTAZA FAZAL ALI AND A. D. KosHAL, JJ.]

Evidence Act 1872 (I of 1872)-S. 24--Accused alleged that ht wa• a5saufrl'd by Custo1::s Officials-No direct cvide1cc available-Surrounding circ111n.\ttt1:ce'I-lj could be taken into accou11t--Cuu11ns Officials lvhether person in t111thori!y- -Confrssion made to customs official~· if adfnis.ibfe in evidence.

On receipt of information that smuggled gold was stored in it. a large num- C ber of senior officials of the Customs Department surrounded the flat belonging to the brother-in-la\V of the appellant and started searching it.

According to the prosecution, while the search was on, the appellant was found peeping from outside through the grille forming part of the flat, and started running away, on seeing that the search was being carried on in the flat.

He was chased by the Customs Staff and caught.

Later his confession was recorded.

Along with the appe11ant several other' persons had also been tried for the D same offence.

Thetrial court convicted and ientenced the appellant of an offence under s. 120B !PC read with s. 135 (I )(a) of the Customs Act.

On appeal the High Court found that the charge under s.135(l)(a) and

(b) of the Customs Act was not sustainable bl1t holding that the offence under other heads \V<J~ proved, it upheld the appell:>nt's conviction and sentence.

It was contended on behalf of the appel1111t lhat the. confession \Vas the result E of an asault on him by the Custon1s Officials, which not being voluntary. wa~ inadmissible in evidence under s. 24 of the Evidence Act

A11owing the appeal.

HELD : 1. (i) It is unsafe to regard the appellant's confession as voluntary ~ and therefore trustworthy.

The concerned Customs Officials were "persons in authOrity" wvithin the meaning of that expression used in s. 24 of the Evidence

F Act.

The confession may well have been obtained in a manner which \vould ..... bring it within the ambit of s. 24 of the Evidence Act.

The appellant has been able to prove the existence of circumstances which make it highly prob able that his confession is hit by the mand'.!te in section 24. [1169H-l 170A,

I 166CJ

(ii) Although there is no direct evidence that force was used on the appel- G lant to extract a confession the surrounding circumstances prevalent at the relevant tin1e in the Customs House where the statement was recorded indicate that all was not well with the manner in \vhich the interrogation of variou, accused was being ca, rried on.

They indicate that the Customs Officials did not stick to ethical standards in the performance of their duties and exhibited nluch zeal in bringing the captives to book and had transgresed the limit sc1 bv low. fl I 66E, 116?Bl H

(iii) One of the accused in this case was found to have seven injuries on his person. The stand of that accused that he was coerced into making a confession. received support from the testimony of the doctor who examined

him so that the probo.bility appears to be that the accused received his injuriel' on the hands of the Customs staff. In the absence of an explanation of the prosecution as to the situation in which he was beaten, it is reasoooble to presume that the stand taken by him was correct and that the injuries were inflicted a! a measure of coercion adopted to secure his confession. Taking these circumstances intc consideration, it is unsafe to re:gard the appellants confession too as voiuntnry.

[1166F. 1168C, 1169G]

Besides, the plea that he had been coerced into making the confession was taken at the earliest opportunity i.e. on the day following his release from custo<lv en 1.,.;]. fl 169Dl

2. Being a close relation of the owner of the fl.at, the Clppellant was perhaps sharing the flat \Vith him _and so had duplioote set of keys; his brother-in-law might have given the Bandi found on the appellant not for the purpose of carrying the gold but just for use as an ordinary raiment.

It is also possible that the appellant became nervous, that he thought that he would be implicated in the crime and therefore, might have started running away on seeing the Customs Officers in the house.

Therefore, these factors on which the High Court relied for sustaining his conviction cannot be regarded as incriminating

circumstances. [l 165F-1166A]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 196 D of 1973.

Appeal by Special Leave from the Judgment and Order dated 7-8 1973 of the Bombay High Court in Crimi"nai Appeal No. 222 of 1970.

S. B. Bhasme, P. G. Gokhale and B. R. Agarwi,/a for the Appel- E !ant.

M. K. Ramamurthi, M. N. Shroff, Mrs. Hemanlaika Wald for the Respondent No. 1.

R. N. Sachthey for Respondent No. 2.

The Judgment of the Court was delivered by

KosnAL, J.-This appeal by special leave is directed against the judgment dated 7th August 1973 of the Bombay High Court upholding the conviction of Scvantilal Karsondas Modi (the sole appellant be!ore us) for an offence under section 120-B of the Indian Penal C.ode read with clauses (a) and (b) of sub-section (1) of section 135 cif the Customs Act 1962, and a sentence of rigorous imprisonment for a year recorded by the Chief Presidency Magistrate, Bombay.

2. The appellant was one of 30 accused persons against whom

, the police initiated proceedings in the court of the trial Magisirate.

Out of them, accused Nos. 28 to 30 were not tried as they had absconded and could not be apprehended.

The case against accused ff Nos. 18 and 19 was allowed to be withdrawn by the learned Magis- • trate on an application made by the Public Prosecutor under section

SUPREME COURT REPORTS [!9i''-JJ 2 s.c.it.

494 of the Code of Criminal Procedure. Accused Nos. 14, 24, 25, 26 and 27 were discharged by the learned Magistrate for want of evidence against them.

Charges were framed by him on l 0 counts against the other 20 accused who were tried in consequence. At the trial, 266 witnesses were examined in support of the prosecution case and 6 in defence.

Accused Nos. 9, 10, 11, 15, 16, 17 and 20 were acquitted as a result of the trial, while 13 of those charged were convicted and sentenced to various terms of imprisonment.

All the 13 last mentioned went up in appeal to the High Court who acquitted accused Nos. 1, 21, 22 and 23.

Accused No. 13 happens to be the

appllant before us. He was convicted and sentenced by the learned Magistrate as aforesaid and also on a separate charge for an offence, under clauses (a) and (b) of sub-section (1) of section 135 of the Customs Act and sentenced to rigorous imprisonment for six months in consequence. His conviction on that charge, however, was set aside by the High Court, against whose judgment, as already stated, special leave to appeal was granted to him by this Court.

3. The prosecution case in so far as it is relevant for the purpose of this appeal may be briefly stated.

V. K. Asthana, (P.W. 228) who was then the Deputy Director in the Directorate of Revenue Intelligence in the Department of Customs at Bombay and is hereinafter referred to as 'Asthana', received information in the first half of September 1966 to the effect that flat No. 2 forming part of the building known as Sagar Mandir and situated in that locality of Bombay which is called 'Shivaji Park' was being used for storage of smuggled gold

' _}

and disbursement thereof to its purchasers.

After the fiat had been ...... kept under watch for a few days by some officials of the Department, a decision was taken by Asthana to raid the premises.

The raiding party which consisted of senior Customs officers, took positions in the vicinity of Sagar Mandir on the morning of 14th September 1966.

They included B.M. Sevalia, Preventive Officer, Bombay Customs (P.W. 7 and hereinafter referred to as 'Sevalia'), G. N. Alreja, Preventive Officer, Bombay Customs (P.W. 34 and hereinafter mentioned as 'Alreja), P. G. N. Ayengar, Appraiser in the Directorate of Revenue Intelligence (P.W. 144 and hereinafter called 'Ayengar') and D. G. Mugwe, Principal Appraiser in the said Directorate (P.W. 152 and hereinafter referred to as 'Mugwe'). Sevalia was deputed to watch the movements of persons entering the flat and to give a signal on the arrival of the suspects. At about 8.50 AM., accused No. 12 was seen entering the fiat and Sevlalia alerted the other members of the raiding party by giving the agreed signal.

Half an hour later, a car stopped at the entrance to the compound of the building and

:il

•\ •• _,

accused Nos. 5, G and 7 alighted therefrom.

Accused No. 5 went towards the concerned flat but got suspicious on noticing the presence of strangers near the entrance.

He turned back and so did his two companions. All three of them took to their heels but were caught by the raiding party on a direction by Mugwe. Accused No. 12 was found inside the flat.

The person of each one of accused Nos. 5, 6 and 7 was searched and yielded 200 slabs of gold weighing 10 tolas each.

All the slabs bore foreign markings and were contained in jackets having long pockets and worn by each of the captives. Bunches of keys exhibits K-4, K-5 and K-6 and a diary containing accounts exhibit 'O' were found lying in the passage forrning part of the flat . .( Bandi exhibit J.-2 was secured from a room of the flat.

A search of -4___ the person of accused No. 12 yielded keys exhibit K-2, which fitted the locks used in the fiat, and sheets of accounts exhibit 'S'.

While the search was going on, accused No. 13 was found peeping from outside through a grille forming part of the fiat but started running away on seeing what was happening inside. He was chased and captured and two keys were seized from his person. One of them was found to fit the lock on the outer door of the flat and the other to fit the latch therein.

He was also found wearing a bandi similar to bandi exhibit J-2.

At his instance four slabs of gold and 10 gold bangles, each weighing 10 tolas, were recovered from underneath the mattress lying on a bed in the flat.

Acc\1Sed Nos. 5 to 7 and 13 were interrogated by the Customs officials. The statement of accused No. 13 exhibit Z.-383 was recorded by Ayengar on the 15th of September 1966. In that statement,

- the appellant gave an exhaustive account of the circumstances in which he happened to come to Bombay and made his services avail- F + able to the principal accused named J. K. Shah. The long and short of the fitatement may be summarised thus :

One day J. K. Shah called accused No. 13, gave him some cloth and sent him in the company of one Goverdhan

.,.

Da~ to have the cloth tailored into bandis of a special type G having two wide and long pockets in the front.

The cloth supplied was thick and strong. A few days after the bandis

~ were ready, accused No. 13 was taken to the flat in ques- ,, tion by his sister's husband, named Natwarlal (accused No.

12) or by accused No. 15. Thereafter accused No. 13 visited the fiat several times when he would receive bandis R containing gold brought from outside and store them in the fiat or would remove such bandis from the fiat to other

places in town. l K Shah had given him keys of the flat.

Whatever gold was removed by him from the flat, was either deposited by him in a room on the second floor of a building situated in Modi Street or delivered to J. K Shah in the latter's office on the 3rd floor of building No. 111 situated in Tambakanta. The room in Modi Street had a telephone the number whereof was 262283 and a key of this room was supplied to him by J, K Shah.

He used to receive orders either from J, K Shah or from accused No. 15 to go to the flat in Sagar Mandir and receive the gold there.

He received gold in this way on the 12th and 13th of September 1966.

On the day of his capture he was in the room in Modi Street when he received a telephone call from J. K Shah at 11 or 11.15 AM. requiring him to to visit the flat in Sagar Mandir and find out if any trouble was brewing and that if that was so, J, K Shah was to be informed on the telephone.

Accused No. 13 rushed to Sagar Mandir in a taxi and tried to find out from outside if there was anything wrong. For that purpose he looked through a broken ventilator.

While he was coming towards the road on the beach nearby he was detained and was taken inside the building.

While the above statement was being recorded, accused Nos. 4, 5, 6, 7 and 8 were identified by accused No. 13 as the persons from whom he used to receive gold at Sagar Mandir.

4. The evidence relied upon by the prosecution against accused No. 13 may be split up under the following heads : _ ~

(a) He was seen visiting the flat in Sagar Mandir on the 8th, 9th and 13th September 1966 by the Customs officials who were watching the premises under the orders of Mugwe.

(b) He was peeping into flat No, 13 between 11 AM. and 12 noon on the 14th of September 1966.

(c) When he found that the flat was under search by officers belonging -to the Customs Department, he tried to run away.

(d) He was found in possession of keys fitting the locks of the flat

(e) He was wearing a bandi similar to bandi exhibit J-2 which is a special type of bandi suitable for carrying gold slabs secretly.

s. K. MOD! v. MAHARASHTRA (Koshal, J.) l l 65

( f) 4 slabs of gold and 10 gold bangles were recov1rd from A underneath the mattress at his instance .

(g) The confession made by him and contained in statement exhibit Z-383 .

The learned trial Magistrate found all the above heads to have been established and that is why he convicted and sentenced accused No.13 on two counts.

The High Court took a different view in relation to beads (a) and (f). It was of the opinion that the identification of accused No.13 by the Customs officials on the 8th, 9th and 13th of ( September 1966 could not safely be relied upon. as they had seen people ..__. coming into and going out the Sagar Mandir only from a distance and for very short periods of time so that their view of such people could p00>sibly be mere "fleeting glances". It farther held the alleged recovery of four gold slabs and I 0 gold bangles to be unreliable as the marginal witness to the recovery memo who was produced in court by the prosecution did not support it and stated that he had not seen accused No.13 pointing out the slabs and the bangles. The High Court concluded therefore that the charge under clauses (a) and (b) of sub-section (1) of section 135 of the Customs Act was not sustainable.

However it found the other heads ot evidence proved and

-011 the basis thereof upheld the conviction and sentence in relation to the charge of conspiracy to commit the other offences just above described.

5. After hearing learned counsel for the parties at length we find .ourselves unable to uphold the impugned judgment in so far as accus-

-~- - ed No.13 is cOllcerned.

The circumstances that he was found peeping into the fiat. that he tried to run away on seeing the Customs officials searching the premises, that he was in possession of duplicate keys of the fiat and that he was found wearing a bandi similar to bandi exhibit J-2 are not incompatible with his innocence.

He was _a close relation of accused No.12 who has been found to be the person really incharge of the flat and it would thus be natural for him (accused No.13) to share the flat with the permission of accused No.12.

In so living with his brother-in-law he may have been given lo wear the bandi found on his person not for the purpose of carrying gold but just for use as ordinary raiment.

Again, in a city like Bombay it is not unusual for persons sharing a particular accommodation to be provided with separate sets of keys for each in order to facilitate ingress or egress at will.

Further, an innocent man finding his premises being watched by persons in authority may well feel funky at the prospect of a false implication on the basis of a mere

susp1c1on (which may or may not be well-founded and may try to make himself scarce.

Without more, the circumstances covered by heads (b), (c), (d), and (e), therefore, cannot be regarded as incriminating circumstances.

So the conviction really rests on the confession attributed to the appellant. If it is found to be voluntary and true it may receive some support from the four heads of evidence just above described.

If, on the other hand, the confession .appears to be either untrue in any material particular or having been caused by any inducement, threat or promise such as is described in section 24 of the Evidence Act, it must fall and with it fall the other heads of evidence, leaving no material to support the conviction.

As it is, we find that the appellant has been able to prove the existence of circumstances which make it highly probable that his confession is hit by the mandate in section 24 abovementioned.

Our reasons for C9Jll.- ing to this conclusion follow.

6. The case set up by accused No.13 in so far as his confession is concerned, mainly consists of a plea that it was the result of an assault on him by the Customs officers including Ayengar and Sevalia and that the latter had forced him into making an endorsement in his own hand-writing under the confessional statement to the effect that that statement was voluntary and had been explained to him by Sevalia.

Naturally, the story of the assault has been stoutly denied by Ayengar and Sevalia; but then the circumstances prevailing at the relevant time in the Customs House where the statement was recorded definitely indicate that all was not well with the manner in which the interrogation of various accused was being carried on. In this connection the outstanding feature of the situation is the fact that accused No. 15 . when examffied by Dr. S. R. Joglekar (D.W.I.) on the 16th September 1966 at 6.15 P.M. was found to have on his person seven injuries which the doctor has described thus:

"(1) Ecchymosis below right eye, outer part, l/2"Xl/3",

blackish colour.

(2) Ecchymosis below left eye, middle, 1/4"Xl/4", blackish colour.

(3) diffused contused area, 2t"X3'', on right thigh, upper part.

( 4) Contused area on right buttock, 3" x 2", lower part, wheal (?) marks seen.

(5) Diffused contused area on left thigh, back and outer part,

5" X 2", wheal (?) marks seen transverse.

(6) Transverse wheal ('I) marks on back of left knee.

(7) Contused area on back of left leg, 2" X 1".

According to the doctor, these injuries appeared to have been caused two to four days earlier.

Admittedly accused No.15 was apprehended by the Customs staff on the 14th September 1966.

Nt> explaination whatsoever is offered for his injuries by the prosecution but the stand taken by accused No.15 himself in this behalf may be stated in his own words

"At that time, there were six Customs Officers around me.

In the gallery, I was again shown the 4 keys.

I was again asked about the said keys and I had again given the same reply.

The said officers on hearing this, get enraged and began to say that I was stating falsehoods.

One of the officers then asked me to take out my clothes.

I had then worn one under wear and a pant and one bush-coat and a ganji.

I was then asked to remove -my pant as well as my undr.rwear by the said officer and I did so accordingly against my will. That officer then ordered me to sit in the position of "a chair".

I was so asked to sit like a chair without the support of a wall even to my back.

The six officers were then standing around me at that time.

After making me to sit in that chair position they began to ask me about the said keys.

I had again °iven the same reply about the said keys.

If I moved a littk 'rom the position of achair given to me, I was kicked by 11 tJir offi.cers immediately. I was able to sit in that posifor for 4-5 minutes. I used to fall down thereafter.

I used tr te kicked therefor, made to stand again and asked to resur• 'he same position.

In this way, I had fal!en and had bee,, . ulted again and again by the said officers for about an hour or so. While I.was

so being questioned and made to sit in that position again and again, one of the officers had gone out and had returned with a ruler in hand having a round shape.

As I was made to sit in that position of a chair, I often used to move therefrom, the officers immediately used to assault me and I used to get up thereby.

Out of the Custom Officers the officer who had the ruler in his hand used w assault me therewith and the other officers used to assault me with kicks.

I had b_een assaulted with that ruler on my left buttock, on my nght buttoc~, on t_he back PNtion of the calf of my left, leg, on my nght thigh, 0n the backside of my both legs etc Js .... 119 SC!/79 .

I had received injuries at all these places stateµ by me above and as a result of this assault on me, I could not even stand up.

Throughout the assault; I was being questioned again and again about the said keys by all the said officer& and at every time I was stating that I did not know anything more about the same.

Thereafter I had fallen down on the ground with my face towards the ground.

All the said six officers then went away." This stand may not be devoid of exaggeration and embellishment but it receives great support from the testimony of Dr.

Joglekar (D.W.I.) so that the probability appears to be that accused No.15 received his injuries at the hands of the Customs staff and there being no explaination on the part of prosecution as to the situation in which he was beaten, it is reasonable to presume that the stand taken by him is correct and that the injuries were inflicted on him as a measure of coercion adopted to secure his confession.

In coming to a contrary conclusion, the High Court was mainly influenced by the fact that although accused No.,15 had filed a complaint in court against the concerned officers of the Department of Customs, he did not prosecute it but had it dismissed for default. The High Court observed in this connection:

"The only explanation for this unusual attitud~ offered by him to the Court is that he was afraid of vindicative attitude from the officers.

We have not been able to conceive how officers could have adopted any vindicative attitude, when accused No.15 was not concerned with any offence ..

Be that as it may, the fact remains that the complaint was not prosecuted and the evidence was recorded behind the back of the officers.

It is not possible to hold on the present material that assaulting by the officers was for the pur- . poses of extorting some confession and such assault alone was the cause of the injuries received by him.

Beyond. therefore, creating a fog of suspicion, the injuries proved to have been caused to accused No. 15, cannot indicate that all the accused were subjected to torture, assault and pressure for giving statements to the liking of officers or compelling them to sign the prepared statements." We do not appreciate this approach to the determination of the voluntary nature of the confession of accused No.15.

As we have already pointed out, the time of infliction of injuries coincided with the day on which accused No.15 was apprehended and his confession was recorded.

In this situation it was the imperative duty of the

.,, fli ' ,.

I '

~ • ' • "

.J- • • ->/

~ 1-· ii

... s. K. MODI v. MAHARASHTRA (Kosnal, J.) 1169

prosecution to explain the circumstances in which it became necessary for force to be used by the Customs staff on the person of accused No. 15 and in the absence of any such explanation there is no reasoh why his plea should not be taken at its face value.

7. We are of course not directly concerned with the voluntary nature of the confession of accused No.15 in this appeal butw the circumstances discussed in the last paragraph indicate that the Custom officials did not stick to ethical standards in the performance of their .duties and, on the other hand, exhibited such a zeal in bringing the ' . --".captives to book as transgressed the limits set thereon by law.

We llave already alluded to the fact that tl1e High Court itself did not regard the recovery of four gold slabs and 10 gold bangles alleged to

lfhave been made at the instance of accused _No.13 to be trustworthy.

Besides, the plea of accused No.13 that he was coerced into making the confession was taken at the earliest opportunity, i.e., on the 20th of September 1966 which was the day next to that of his release from custody on bail.

That plea is contained in letter exhibit 29 addressed by him on that date to the Additional Collector of Customs, Bombay, which contained the following averments:-

"From the 14th instant at 12 noon till about 3 p.m. I was locked up along in one room with some Customs Officers wjjp continuously interrogated me, threatened and physically ... uited me to make and sign a statement prepared by them after ascertaining a few personal questions from me pertaining to my family and myself.

I was not allowed to sleep during the entire night of the 14th/15th and was not allowed to see any person.

The statement was written out by the officers themselves in English language and it was not explained to me and my signature was obtained which I have signed in Gujarathi.

As a result of this threat, coercion and complete exhaustion, I had no alternative but to sign the statement after which only I was allowed

(o rest."

Taking note of these circumstances we would consider it extremely

.i unsafe to regard the confession exhibit Z-383 signed by the appellant as having been made by him voluntarily and therefore trustworthy.

The appellant, in our opinion, has shown the existence of circumstan- H ces which make it appear to the Court that the confession may well " have been obtained in a manner which would bring it within the ambit

A of section 24 of the Evidence Act, it being undisputed that the concerned officers of the Department of Customs were "persons in authrity" within the meaning of that expression as used in the section.

8. In the result the appeal succeeds and is accepted.

The judgment of the High Court is reversed, the conviction recorded against B and the sentence imposed upon the appellant by the learned trial Magi'\frate and upheld by the High Court are set aside and he is 2cauitted of the charge in i, s enlirely.

N.V.K.

Appeal a.Uowed.

160

SEY ANTILAL KARSONDAS MODI

STATE OF MAHARASHTRA & ANOTHER

January 30, 1979

S. MURTAZA FAZAL ALI

A. D. KosHAL, JJ.

Evidence Act 1872

S. 24

s. 120B

s. 135

Customs Act

Customs Act

s. 24

s. 24

s. 24

section 24

S. B. Bhasme

P. G. Gokhale

B. R. Agarwi,/a

M. K. Ramamurthi

M. N. Shroff

Hemanlaika Wald

R. N. Sachthey

KosnAL

Scvantilal Karsondas Modi

section 120

section 135

Customs Act 1962

Code of Criminal Procedure

section 135

Customs Act

V. K. Asthana

Bombay

Asthana

14th September 1966

B.M. Sevalia

G. N. Alreja

P. G. N. Ayengar

Directorate of Revenue Intelligence

D. G. Mugwe

Sevalia

Sevlalia

Mugwe

Ayengar

15th of September 1966

J. K. Shah

In that statement,
the appellant gave an exhaustive account of the circumstances in which he happened to come to Bombay and made his services avail- F + able to the principal accused named J. K. Shah.

Goverdhan

Natwarlal

l K Shah

J. K Shah

Tambakanta

J, K Shah

12th and 13th of September 1966

8th, 9th and 13th September 1966

14th of September 1966

8th, 9th and 13th of ( September 1966

section 135

Customs Act

section 24

section 24

S. R. Joglekar

16th September 1966

Joglekar

section 24

N.V.K.


GOPALLAL

STATE OF RAJASTHAN

January 30, 1979

[S. MuRTAZA FAZAL Au AND A. D. KosHAL, JJ.]

Bigamy, offence of under section 494 f.P.C.-Ad1nission and legal evidence of actual 1narriage by custom of nata marriage attracts the provisions of sectio11 494 l.P.C.

~ Nata 1narriage by customs and therefore void under section 17 of the lfindu -,., Jarriage Act, 1955-Whether voidness of a marriage under section 17 of the C H.M.A., 1955 disattracts the applicability of the provisions of section 494 .-'f l.P.C.

After having fallen out and parted comp:lny "With his wife Kanchan in the year 1963, the appellant, belonging to Telli communiLy contracted a second marriage prevalent amongst his community with Gopi on 20th March 1969. A complaint filed by his first wife ended in his conviction under se.ction 494 D I.P.C. and sentence of two years RJ. and a fine of Rs. 2,000/-, the conviction and sentence having been upheld by the Raiasth&n lligh Court.

Dismissing the appeal by special leave, the Court,

HELD : 1. The second marriage was a valid marriage according to the custom of the nata marriage prevalent in the Telli community which requires the following two essential ceremonies:-

). - -

(a) that the husband should take a pitcher full of weter from the head

;:of the prospective wife, and

(b) that the wife should wear chura by the husband.

'*" The prosecution through PWs. 2, 3, 4 and 5 having proved that these cere- F monies have been duly performed, that there was such a custom which requires the said ceremonies having been admitted by the defence witnesses 3 and 5 and the validity of the first marriage not having been disputed, Section 494 I.P.C. applies in terms and the appellant must be held to have con1nutted the c, f!ence of Bigamy as contemplated by section 494 I.P.C.

[1'176A-EJ

2. The combined effect of section 17 of the Hindu Marriage Act and section G 494 I.P.C. is that when a person contracts a second ntarriage afler the coming • into force of the said Act 1vhile the first niarriage is subsistinf?, such a person coQunits the offence of bigamy. [1174 El

Section 17 of the Hindu Marriage Act, 1955 makes it absolutely clear that the provi5icn has to be read in harmony and conjunction with the provisions of section 494 I.P.C., the essential ingredients of which are : (i) tlmt the accused spouse must have contracted the first maniage (ii) that while the first marriage H was subsisting the spouse conc-erned must have contracted a second marriage, and (iii) that both the marriages must be v..alid in the sense that the necessary

A ceremonies required by the personal law governing the parties had been duly performed and (iv) the second marriage must have become void by VlflUe of

the fact that it had taken place in the !ifo timo of one of the ; pauses. [ll 73F-B.,

Jl74ACl

3. Where a spouse contracts n second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under section 494, l.P.C.

if it is proved that the second marriage v.1as a valid one in the sense that the necessary ceremonies required by law or by custom have been actually per- formed.

The voidness of the marriage under section 17 of the Hindu Marriage Act is in fact one of the cssentia1 ingredients of section 494 because the second 1narriage wilJ became void only because of tho provisions of section 17 of the Hindu Marriage Act. Therefore, the contention that the second marriage being void section 494 I.P.C. will have no applicatio11 is not correct.

[1175F-G]

Bhaurao Shankar Lokhande and Anr. v. State of Maltarashtra and Ors.; [1965]2 S.C.R. 837; Kanwal Rani and Ors. v. The Hbnachal Pradesh Adn1inistratio11, [1966],1 S.C.R. 539 and Priya Bala Ghosh v.

Suresh Chandra Ghosh; [1973] 3 S.C.R. 961 applied.

[Bigamy being a serious offence for which the maximum punishn1ent 1.3 seven years, the Court while maintaining the conviction reduced the sentcn;; e to one year.]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 255 of 1973. ·

Appeal by Special Leave from the Judgment and Order dated 16-7-73 of the Rajasthan High Court in S.B. Cr!. Revn. No. 309/73.

A. N. Mui/a and B. P. Singh for the Appellant.

Sobhag Mal Jain and S. K. Jain for the Respondent.

The Judgment of the Court was delivered by

FAzAL Au, J.-This appeal by special leave is directed against a judgment of the Rajasthan High Court by which the conviction of the appellant under Section 494 I.P.C. and sentence of two years rigorous impri.sonment and fine of Rs. 2,000/- have been upheld.

The facts of this case have been detailed in the judgments of the courts below and it is not necessary to repeat them.

Suffice it to say that the accused Gopal Lal married the complainant Kanchan sometime in the year, 1963 and a child was born out of this wedlock.

Soon thereafter the parties appeared to have fallen out and parted company.

While the first marriage was subsisting Gopal Lal contracted a second marriage which according to the custom prevalent amongst Tellis is a valid marriage commonly known as nata marriage.

This marriage was contracted on 20th of March, 1969.

The complainant Kanchan, the first wife having come to know about this marriage filed a complaint on the 22nd March, 1969, on the basis of

which appellant was prosecuted and ultimately convicted as mentioned above.

Mr. A. N. Mulla, learned counsel for the appellant, had submitted two points before us.

In the first place it was contended that in view of the provisions of. Section 17 of the Hindu Marriage Act, the second marriage being a void marriage, the provisions of Section 494 I.P.C. are not attracted at all.

We have given our anxious consideration to this argument but we are of the opinion that the argument is wholly untenable.

Section 494 runs thus :

"Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the lifo of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception-This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shalt before s.uch marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge".

The essential ingredients of this offence are :

( 1) that the accused spouse must have first marriage. contracted the

(2) that while the first marriage was subsisting the • spouse concerned must have contracted a second marriage and

( 3) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties bad been duly perforaned.

It may also be noticed that Section 494 I.P.C. would come into play only if the second marriage beomes void by virtue of the fact

that it had taken place in the life time of one of the spouses.

Thus, it is not possible to accede to the contention of Mr. Mulla that merely because the second marriage was void under Section 17 of the Hindu Marriage Act hence Section 494 I.P.C. would not be attracted. Section 1 7 of the Hindu Marriage Act runs thus

"Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly".

What Section 17 contemplates is that the second marriage must be according to" the ceremonies required by law.

If the marriage is void its voidness would only lead to civil consequences arising from such marriage.

Section 17 makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of Section 494 of the Penal Code which has been extracted above.

Section 17 clearly provides that provisions of Sections 494 and 495 of the Penal Code shall apply accordingly.

In other words though the marriage may be void under Section 17, by reason of the fact that it was contracted while the first marriage was subsisting the case squarely falls within the four corners of Section 494 and by contracting the second marriage the accused incurs the penalty imposed by the said statute.

Thus the combined effect of Section 17 of Hindu Marriage Act and Section 494 I.P.C. is that when a person contracts a second marriage after the coming into force of the said Act, while the first marriage is subsisting he commits the offence of bigamy. (Emphasis ours).

This matter no longer res integra as. it co'ncluded by a decision of this Court in Bhaurao Shankar Lokhande and Anr. v. State of Maharashtra & Anr.('). This Court while considering the question of bigamy qua th~ provisions of Section 1 7 observed as follows :

• "Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of ss. 494 and 495 I.P.C. shall apply accordingly.

The marriage between two Hindus is void H in view of s. 17 if two conditions are satisfied :

(i) the marriage is solemnized after the commencement of the Act;

(1) [19651 2 S.C.R. 837.

( -*\_

(ii) at the date of such marriage, either party had a spouse living. If the marriage which took place between the apellant and Kamlabai in February 1962 cannot be said to be 'solemnized', that marriage will not be void by virtue of s. 17 of the Act and s. 494 l.P.C. will not apply to such parties to the marriage as had a spouse Jiving".

The word 'solemnize' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form', according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and in due form' it cannot be said to be 'solemnized'. It is therefore essential, for the purpose of s. 17 of the Act that the marriage to which s. 494 I.P.C. applies on account of the provisions of the Act should have been celebrated with proper ceremonies and in due form".

It was thus pointed out by this Court that Section 17 of the Hindu Marriage Act requires that the marriage must be properly solemnized in the sense that the necessary ceremonies required by Jaw or by custom must be duly performed.

Once these ceremonies are proved to have been performed the marriage become properly solemnized and if contracted while the first marriage is still subsisting the provisions of Section 494 will apply automatically.

In a decision of this Court in Kanwal Ram & Ors. v. The Himachal Pradesh Administration(') the earlier case was noticed by the Court and relied .-> upon.

The matter has ; i.!so been fully discussed in Priya Bala Ghosh

v. Suresh Chandra Ghos'1f. (') In view of the authorities of this Court, therefore, the following position emerges : where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy nnder Section 494 if it is proved that the second marriage wa.s a valid one in the sense that the necessary ceremonies required J1y law or by custom l].av, e been actually performed.

The voidness oT the marriage under Section 17 of the Hindu Marriage Act is in fact one of. !he essential ingredients of Section 494 because the second marriage will be<'.:ome void only because of the provisions of Section 17 of the Hindu Marriage Act.

In these circumstances, therefore, we are unable to accept the contention of Mr. Mulla that the second marriage being void Section 494 win .have no application.

It was next ontended by Mr .. Mulla that there is no legal evidence to show th!!t the second marriage which is said to

(I) [1966] l S.C.R. 539.

(2) [1971]3 S.C.R. 961.

A be a nata .marriage was actually performed. We are afraid, we are unable to go into this question because three courts have concurrently found as a fact that the parties were governed by custom of nata marriage and the two essential ceremonies of this marriage are : (

(1) that the husband should take a pitcher full of water from the head of the prospective wife;

(2) that the wife should wear churn by the husband.

There is evidence of P.Ws. 2, 3, 4 and 5 who have proved fact that these ceremonies had been duly performed in their preience. l That there was such a custom which requires these ceremonie~ was_/" admitted by D.Ws. 3 and 5 who were examined by the appellant.

The evidence Jed by the prosecution has been accepted by the High Court and the courts below and after perusing the evidence we are not in a position to hold that the finding of facts arrived by the courts below are wrong in law or perverse.

From the evidence led by the prosecution, therefore, it has been clearly established that the second marriage which was performed by the appellant Gopal Lal with Gopi was a valid-marriage according to the custom ofthe nata marriage prevalent in the Telli commuhity to which the appellant belonged.

This being so and the validity of the first .marriage not having been disputed, Section 494 LP.C. applies in terms and the appellant must be held to have committed the offence of bigamy as contemplated by Section 494 I.P.C.

Lastly, Mr. Mulla pressed this appeal on the question of sentence.

Bigamy is a serious offence and the maximum punishment under Section 494 is seven years.

Therefore, where the offence of bigamy is 1roved the Court cannot -"' take a very lenient view.

In the instant case the appellant was sentenced to two years and a fine of Rs. 2,000/-.

It appears that the appellant has already paid a fine of Rs. 2,000/-.

In these circumstances, therefore, we feel that 'the ends of justice will be met by reducing the sentence of imprisonment from two years to one year but maintaining the .sentence of fine.

Wi~ this modification the appeal is dismissed.

The appellal)t will now surrender and serve out the remaining portion of the sentence.

S.R- Appeal dismissed.

GOPALLAL

STATE OF RAJASTHAN

January 30, 1979

A. D. KosHAL, JJ.

section 494

section 17

Jarriage Act, 1955

section 17

section 494

Gopi

I.P.C

Section 494

I.P.C

section 494

I.P.C

section 17

Hindu Marriage Act

I.P.C

Section 17

Hindu Marriage Act, 1955

section 494

I.P.C

section 494

section 17

Hindu Marriage Act

section 494

section 17

Hindu Marriage Act

section 494

I.P.C

[1973] 3 S.C.R. 961

A. N. Mui

B. P. Singh

Sobhag Mal Jain

S. K. Jain

FAzAL Au

Rajasthan High Court

Section 494

I.P.C

Gopal Lal

Kanchan

20th of March, 1969

22nd March, 1969

A. N. Mulla

Section 17

Hindu Marriage Act

Section 494

I.P.C

Section 494

Section 494

I.P.C

Mulla

Section 17

Hindu Marriage Act

Section 494

I.P.C

Section 1

Hindu Marriage Act

sections 494 and 495

Indian Penal Code

Section 17

Section 17

Section 494

Penal Code

Section 17

Sections 494 and 495

Penal Code

Section 17

Section 494

Section 17

Hindu Marriage Act

Section 494

I.P.C

Section 1

Section 17

ss. 494 and 495

I.P.C

s. 17

Kamlabai

s. 17

s. 494

s. 17

s. 494

I.P.C

Section 17

Hindu Marriage Act

Section 494

Section 494

Section 17

Hindu Marriage Act

Section 494

Section 17

Hindu Marriage Act

Section 494

Gopal Lal

Section 494

Section 494

I.P.C

Section 494


.Ji. ...

J .,

M. V. RAMASUBBJER AND OTHERS

MANICKA NARASIMHACHARI AND OTHERS

January 30, 1979

[P. N. SmNGIIAL AND p. S. KArLASAM, JJ.]

Trusts Act-Ss. 49, 51 and 52-Scope of-Managing Trustee purchased property for the trust sold it to his son for lesser price than offered by others- Sale if valid-Duty of trustee.

Pleintiffi and defendants \Vere descendants of a common ancestor who was the founder of a trust. Defendani no. 1, at the relevant time, was the managing trustee of the trust.

On partition and sale of family properties a house, C which was the suit property, was purchased for the trust.

Soon thereafter defendant no. 1 sold it to his son.

Before the sale, however, the tenant of lhe house who was a man of substance, offered a much higher price than what was paid by the son but the defendant sold it to his son.

In the plaintiffs' suit challenging sale of the trust property to the managing trustee's son for a lesser consideration the defendant claimed that the property D had to be sold because his son who was the owner of adjacent property raised a dispute claiming easementary rights over the property.

The suit was decreed by the trial court but on appeal the High Court held that the consideration was adequate and fair, that the sale was bona fide and that no ulterior motive could be attributed to the defendant .no. 1 in the sale.

The High Court, therefore, dismissed the suit.

Allowing appeal,

1-~LD : (a) The sale had to be viewed with suspicion The High C0urt committed an error of law in ignoring important aspects of law which bad a direct bearing on the controversy before it. [ll8l1\]

(b) It is well recognised that a person in a fiduciary position like a trustee F is not entitled to make a profit for himself or a member of his family.

I:-Ic is not allowed to put himself in a position in which a conflict may arise between his duty as a trustee and his personal interest.

[1180E]

( c) The control of the trustee's discretionary power prescribed by s. 49 of the Trusts Act and the prohibition contained in s. 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose G unconnected with the trust and the equally important prohibition in s. 52 that the trustee may not directly or indirectly buy the .trust property on his own account or as an agent for a third person, cast a heavy responsibility upon hin1 in the matter of discharge of his duties as trustee.

The rule prescribed by these sections connot be evaded by making a sale in the name of the trustee's partner or son, for that would, in fact and substance, indirectly benefit the trustee.

[11 BOF-G] H

(d) Where a trustee makes the sale of a property belonging to the trust, without any compc1Iing reason in favour of his son, without obtaining the

A permission of the court concerned, it is the duty of the court to examine w-hether the trustee has acted rCasonably and in good faith or whether he bas committed a breach of the trust by benefiting himself from the transaction in

::in indirect n1anner. f 1180H1

(i) In the instant case defendant no. 1 was the tiustee of the property. It was his duty to be faithful to the trust and execute it with reasonable diligence Ill the manner in which an ordinary prudent man of business would conduct his own affairs. He could not occasion any loss to the trust and it was his duty to sell the property, if that was so necessary to sell, to the best advantage of the trust. fl l 80D]

(ii) l'he I-ligh Court was wrong in blaming the plaintiffs _that they had brought the suit on account of persona] grouse and spite. Assuming that they \Vere so actuated, their action was eminently for the advantage of the tru.o;.t created by their ancestor in which they had a substantial and direct interest. [l 18lD]

(iii) Defendant no. 1 was not able to explain how the sale was beneficial to the trust. Income by way of rent which the property was fetching Was fa!:' more than interest which the sale proceeds fetched when they were invested in fixed deposits in a Bank. He was therefore unable to explain how he acted as D a rru:1n of cndinary prudence in slashing do\vn the income of the trn'i+ by mating the rn!e. [l 181GJ

(iv) When defendant no. 1 sold the trust property to his son at a le1Mer price than was otherwise available, he did not act in accordance with law in the discharge of his fiduciary relationship with the trust.

He_ sold the property to his son in disregard of his statutory duty which no man of ordinary pru- E denoe would tave done. [ll82C]

(v) Assuming that defendant no. 1 made a gesture of goodwill in favour of the trust when he allowed the sale of the family property to the trust, he could not possibly absolve himself from what he did in selling it off to his &on at a lesser price than was offered by another person. [ 1l82F] -"-,

(vi) Assuming that there was sume diffi.:ulty in respect of rights of easement F between the trust and the defendant's son who was the immediate neighbour of the property, that could have been a lever in the hands of the trustee to make a bargain for higher consideration from his son . who was equally interested in the property.

A man of prudence would not have sold his property for a considerably lesser amount than that offered to him by another person and agreed to sell it just becauSc a co-sharer was causing trouble and offering

a few lesser price. fll83A-Bl G

CtvIL APPELLATE JURISDICTION : Civil Appeal No. 1584 of 1969.

Appeal from the Judgment and Decree dated 20-2-1969 of the Madras High Court in Appeal No. 104 of 1963.

G. L. Sanghi and Vineet Kumar for the Appellants.

Vepa P. Sarathy and Mrs. S.

Gopalakrishnan for Respondent No. I.

RAMASUBBIER V. NARASIMHACHARI (Shing/uil, J.) 1179

K. Jaypram for Respondents 2-5.

The Judgment of the Court was delivered by

SHINGHA L, J .-This appeal by a certificate of the Madras High Court is directed against its judgment and decree dated February 20,

1969.

One Manikka Sankaranarayana Iyer, father of defendants 1 and 3 and grandfather of plaintiffs 1 to 5 and defendants 2, 4 and 5 and father-in-law of plaintiff No. 6 constituted an Annadanam Trust and he and his sons executed a registered deed of settlement for that purpose on June 3, 1908.

By that document Sankaranarayana Iyer I became the first trustee for life, and it wa& provided that after him the senior-most member would be the trustee, by turns.

Sankara- . narayana died and defendant No. 1 became the managing trustee of the trust.

There was a suit for partition of the family properties including house No. 48A, and it was settled by a compromise under which a preliminary decree dated September 12, 1956 was drawn up for the sale of the properties amongst the members of the family.

Defendant No. 1 purchased the suit property for Rs. 21,500/- for the aforesaid frust on April 19, 1959.

A final decree was drawn up on November 29, 19"59 in which house No. 48A was shown as the property of the trust.

Defendant No. 1 however sold that property soon after, to his son defendant No. 2 on July 14, 1960, for Rs. 25,000/- under sale deed Ex. B. 13.

Chithambaram Chettiar (P.W. 2), who was a tenant of that property from 1949 onwanjs, came to know of the intended sale and sent a registered notice to defendant No. 1 cin July 21, 1960, offering to purchase it for Rs. 35,000/-.

Defendant No. 1 however we.nt ahead with the sale of the property to his son and registered the sale deed on July 22,

1960.

The plaintiffs thereupon filed the present suit on September 15, 1%0, challenging that' sale and asking for its restorati.on to the trust.

The defendants resisted the claim in the suit on the ground that the sale price was fair and adequate and that the sale had to be made because of the disputes which had arisen between the second defendant as the owner of the adjacent house and the trust in regard to the asementary rights of drainage, light and air etc.

The suit was decreed by the Subordinate Judge of Madurai on September 10,

1962.

The High Court of Madras however allowed the appeal against that judgment and decree and dismissed the suit with costs of both the courts holding that Rs. 25,000/- was "quite adequate and fair" price for the suit proper-ty and that defendant No. 1 acted w'th "perfect bona tides and no ulterior motive can be attributed to him." That is why the plaintiffs have come up in appeal to this Court.

It is not indisputc before us thai the Indian Trusts Act, 1882, hereinafter referred to as the Act, applied to the trust in question and that it was necessary for the plaintiffs to prove that defendant No. 1 did not exercise his discretionary power of selling the suit property "reasonably and in good faith" and that he indirectly purchased it for himself, in the name of his son (defendant No. 2), within the meaning of section 49 and 52 of the Act.

There is some controversy on the question whether defendant No. 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21 ,500/- on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on I to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs. 21,500/-, which was less than its market value, as it was meant for use by the trust and that defendant No. 1 was not acting honestly when he palmed of the property to his son soon after by the aforesaid sale deed Ex. B. 13 dated July 14, 1960.

The fact however remains that defendant No. 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs.

He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at .all that was necessary, to best advantage.

It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family.

It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee's discretionary power prescribed by seetion 49 of the Act and the prohibition contained in section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee. It does not require much argument to proceed to the inevitable further codclusion that the rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee's partner or rnn, for that would. in fact arid substance, indirectly benefit the trustee.

Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether

• •

RAMASUBBIER V. NARASIMHACHARI (Shinghal, J.) 1181

the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner.

The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it:

The High Court in fact proceeded to examine the case on the assumption that the plaintiffs had instituted the suit not so much out of a genuine desire to redress an"y wrong done to the trust, as out of

"ulterior motives and ill-will against the first and second defendants." r This shows that instead of examining the case according to the

.)(iterian mentioned above, the High Court based its decision on an extraneous consideration and blamed the plaintiffs for raising the suit on account of "personal grouse" and "personal spite". We have

~ not been referred to any evidence which could justify the High Court's view that there was any such grouse or spite.

But even if it were assumed for the sake of argument that the plaintiffs had any such motive for raising the suit, the fact remains that their action was eminently one for the advantage of the trust which had been created by their ancestor and in which they had a substantial and a direct interest.

Some important facts stand out from the evidence on the record which are directly in point.

The suit property belonged to the family which had created the trust.

It was purchased by defendant No. 1, in his capacity as the trustee of the Annandanam Trust for Rs. 21,500/- on April 19, 1959, at a family sale.

It appears from

.~ the statement of defendant No. 2 that the property was capable of, or could fetch a rent of about Rs. 190/- per mensem, amounting to Rs. 2,280/- per annum.

It has also been admitted that the sum of •Rs. 25,000/- was not utilised by the trustee (defendant No. 1) for purchasing any other better property, but was invested in fixed deposit with a bank at 3! per cent interest per annum.

That could yield an income of only Rs. 875/- per annum, The trust therefore lost heavily in the bargain. What is worse, defendant No. 1 has not been able to explain how the sale could be said to be beneficial to the trust and how he could possibly contend that he acted as a man of ordinary prudence in slashing down the income of the trust by making the sale .

The further fact that stands out from the evidence on the record H is that when Chithambaram Chettiar (P.W. 2), who was a tenant in the suit property from 1949 onwards, learnt about the intended sale,

he sent a notice to defendants Nos. 1 and 3 offering to purchase it for Rs. 35,000/-. That notice was issued on July 21, 1960.

The receipt of the notice has been admitted by defendant No. 1 in his statement in the trial court, and he has further admitted that Chithambaram Chettiar offered to purchase the property for Rs. 35,000/- and that he sold it to his son for Rs. 25,000/- without even informing him that he had received the offer of Rs. 35,000/-. Defendant No. 1 in fact proceeded to register the sale deed of the property in favour cf :. ~,0!1, the second defendant, on July 22, 1960.

It is therefore quite clear that he did not care to act in accordance with the law in the discharge of his fiduciary relationship with the trust and executed the sale deed in his son's favour in disregard. of his statuto~ duty, ) for no man of ordmary prudence would possibly have sold his pro-_,~ perty for Rs. 25,000/- when he had an offer of Rs. 35,000/-. That offer could not be said to be from a man of no substance because Chithambaram Chettiar (P.W. 2) who made it, was known to the. defendants and he has stated that he was a man of means and was worth rupees four lakhs. It may be that the son-in-law of plaintiff.

No. 2 was employed in his shop, but that could not detract from the basic fact that a much higher offer had been made by a man of subslance.

Iustead of examining the appeal with due regard to the above- E mentioned evidence, the High Court was obsessed by a consideration of the evidence which had been led for the purpose of showing that while defendant No. 1 had purchased the property for himself on April 19, 1959, for Rs. 21,500/-, he gave up that advantage in favour -':lit-' of the trust.

The evidence on the point is not unequivocal, for it may well be that defendant No. 1 did not want to obtain a sale deed

, J,

F in his own name for other reasons, but even if it were assumed that he made a gesture of goodwill in favour of the trust on April 19, 1959, he could not possibly absolve himself from what he did in • selling it off, after it had become the property of the trust, to his own son a few months thereafter for Rs. 25,000/- when he had a genuine offer of Rs. 35,000/-.

G Another consideration which prevailed with the High Court in setting aside the finding of fact of the trial court was that, according to it, the evidence on the record showed that some difficulties had cropped up after the property had been purchased as his son, defendant No. 2, began to "give trouble" and that he resolved that H trouble on the advice of his family lawyer Shri V. Rajagopala Iyengar (D. W. 3) by selling the property to his son. This view was obviously incorrect, for even it were assumed that there was some

...

I •

• ' •

'°1

RAMASUBB!ER v. NARASIMHACHARI (Shingfwl, J.) I jgj

difficulty in respect of some common rights of easement, that could A well have been a lever in the hands of the trustee to make a bargain for Rs. 35,000/- or more with his son who was equally interested in those easementary rights.

A man of prudence would not have sold his property for a considerably lesser amount than that offered to hini by another person and agreed to sell it just because a co-sharer in . g the easementary right Was causing trouble and was offering a far lesser price.

We have gone through the statement of V. Rajagopala Iyengar (D. W. 3) on whose advice defendant No. 1 claims to have sold the property for Rs. 25,000/-. He has admitted in his statement that he had not even seen the suit property, and he knew nothing about C the so called trouble in regard to the easementary rights between defendant No; 1 and his son.

On the other hand, we find that he was indebted to the family of defendants Nos. 1 and 2 and he did not even care to asce1tain what rent the suit property was fetching when he advised its sale for Rs. 25,000/- to the son of defendant No. 1.

The High Court therefore did not even read the evidence D correctly while placing reliance on his test1mony.

For the reasons mentioned above, we have no doubt that the High Court did not examine the controversy in its proper legal perspective and with due regard to the salient facts wl1ich had been established by the evidence mi the record and it was not therefore justi- E fied in setting aside the finding of the trial court.

The appeal is allowed.

The impugned judgment and decree of the High Court are set aside and the decree of the trial court is restored with costs throughout.

P.B.R.

Appeal 111/owed.

19-119 SCI 79

M. V. RAMASUBBJER AND OTHERS

MANICKA NARASIMHACHARI AND OTHERS

January 30, 1979

Ss. 49, 51 and 52

s. 49

s. 51

s. 52

G. L. Sanghi

Vineet Kumar

Vepa P. Sarathy

S.

Gopalakrishnan

RAMASUBBIER V. NARASIMHACHARI

K. Jaypram

SHINGHA L

Manikka Sankaranarayana Iyer

June 3, 1908

Sankaranarayana Iyer

September 12, 1956

April 19, 1959

29, 19"59

Chithambaram Chettiar

July 22,

1960

September 15, 1%0

Subordinate Judge of Madurai

September 10,

1962

High Court of Madras

section 49 and 52

July 14, 1960

section 51

section 52

RAMASUBBIER V. NARASIMHACHARI

Shinghal

Annandanam Trust

July 21, 1960

Chithambaram Chettiar

July 22, 1960

V. Rajagopala Iyengar