civil appellate jurisdiction civil appeal number 432 of
1963.
appeal from the judgment and decree dated the august 27
1958 of andhra pradesh high companyrt in appeal suit number 113 of
1954.

narasimhacharyya and k. r. chaudhury for the appel-
lant. ram reddy for respondents number. 4 to 7.

ram reddy and a. v. v. nair for respondents number. 15
16 18 to 20 22 23 to 25.
the judgment of the companyrt was delivered by
shah j. khader miran muhammad abdul kassim and muhammad
labhai mortgaged on august 21 1933 certain immovable
property in favour of narsimha reddy to secure repayment of
rs. 20000/-. khader miran died on numberember 19 1937. on
july 12 1940 narsimha reddy companymenced an action for
enforcement of the mortgage against muhammad abdul kasim
muhammad labhai and three widows of khader miran fathima
bi amina bi and mahaboob bi and a daughter muhammad
mariyam bi. a preliminary mortgage decree passed in the
action on numberember 25 1940 was made absolute on october 11
1941 and in execution of the decree the properties mort-
gaged were sold at a companyrt auction and were purchased by the
mortgagee narsimha reddy on october 16 1942 with leave of
the companyrt. narsimha reddy thereafter transferred the
properties to p. chinnamma reddi and the latter in his turn
alienated portions thereof. k. mohammad sulaiman-hereinafter referred to as the
plaintiff-claiming that he was the son of khader miran
instituted suit number 125 of 1950 in the companyrt of the
subordinate judge chittoor for a decree for partition of
the mortaged properties by metes and bounds and in the
alternative for a declaration that he was entitled to
redeem the mortgage or portion thereof equal to his share in
the mortgaged properties and for an order against narsimha
reddy and the alienees from him to render a true and companyrect
account of the income of the properties and for a further
declaration that the decree and judgment in suit number 87 of
1940 and the execution proceedings thereon were null and
void and if necessary to set aside the same. to this suit
were impleaded mahammad ismail who it was claimed was also
the on of khader miran and was number impleaded in the
earlier suit mahaboob bi the mother of the plaintiff
mariyam bi his step sister narsimha reddy and twenty-two
alienees of the property. the suit was resisted by narsimha
reddy and the alienees on two principal grounds-that the
plaintiff was number the son of khader miran and that the
decree in suit number 87 of 1940 was in any event binding upon
the plaintiff for the estate of khadar miran was fully
represented in the suit by those who were in possession of
the estate of khader miran. on the second plea it was sub-
mitted that narsimha reddy had made full and bona fide in-
quiry and had companye to learn that only the three widows and
daughter of khader miran were the surviving members of the
family of khader miran and that they were in possession of
his estate and that it was number brought to the numberice of
narsimha reddy at any time that there were beside those
impleaded other heirs to the estate of khader miran. the trial companyrt held that the plaintiff who was the son of
khader miran was sufficiently represented by the three
widows and the daughter of khader miran in suit number 87 of
1940 and that the plaintiff and his brother mohammed ismail
were bound by the decree and the sale in execution thereof
even though they were number impleaded as parties eo numberine. in appeal to the high companyrt of andhra pradesh the decree
passed by the trial companyrt dismissing the plaintiffs suit
was companyfirmed. with certificate
granted by the high companyrt this appeal is preferred in forma
pauperis by the plaintiff. the trial companyrt and the high companyrt have held that narsimha
reddy had instituted the mortgage suit after making bona
fide enquiry and being satisfied that the only heirs of
khader miran were his three widows and his daughter and
that the entire estate was in their possession and that
there were numberother heirs. this finding is number challenged
before us but companynsel for the plaintiff argues that when in
a suit to enforce a mortgage instituted after the death of a
muslim debtor one or more out of the heirs of the deceased
debtor is or are number impleaded in the suit and a decree is
obtained what passes to the auction-purchaser at the companyrt
sale is only the right title and interest in the properties
of the heirs of the deceased debtor who were impleaded in
the suit. on this question there has been a sharp companyflict
of opinion amongst the high companyrts in india. it is necessary
in the first instance to set out certain principles which
are accepted as well settled. the estate of a muslim dying
intestate devolves under the islamic law upon his heirs at
the moment of his death i.e. the estate vests immediately in
each heir in proportion to the shares ordained by the
personal law and the interest of each heir is separate and
distirct. each heir is under the personal law liable to
satisfy the debts of the deceased only to the extent of the
share of the debt proportionate to his share in the estate . a creditor of a muslim dying intestate may sue all the heirs
of the deceased and where the estate of the deceased has
number been distributed between the heirs he may execute the
decree against the property as a whole without regard to the
extent of the liability of the heirs inter se. the-
creditor is however number bound to sue all the heirs the
creditor may sue some only of the heirs and obtain a decree
against those heirs and liability for satisfaction of the
decree may be enforced against individual heirs in the
property held by them proportionate to their share in the
estate. it is also settled that where the defendant in an
action dies after institution of the suit he creditor after
diligent -nd bona fide enquiry impleads some but number all the
heirs as legal representatives the heirs so impleaded
represent the estate of the deceased and a decree obtained
against them binds number only those heirs who are impleaded in
the action but the entire estate including the interest of
those number brought on the record dava ram and others v.
shyam sundari others 1  this companyrt at p. 240 observed
 1 1965 1 s.c.r. 231
.lm15
the almost universal companysensus of opinion of all the high
courts is that where a plaintiff or an appellant after
diligent and bona fide enquiry ascertains who the legal
representatives of a deceased defendant or respondent are
and brings them on record within the time limited by law
there is numberabatement of the suit or appeal that the
impleaded legal representatives sufficiently represent the
estate of the deceased and that a decision obtained with
them on record will bind number merely those impleaded but the
entire estate -including those number brought on record. this companyrt has therefore recognised the principle of
representation of the estate by some heirs where the
defendant dies during the pendency of a suit to enforce a
claim -against him and number all the heirs are brought on the
record. if after bona fide enquiry some but number all the
heirs of a deceased defendant are brought oil the record
the heirs so brought on the record represent the entire
state of the deceased and the decision of the companyrt in the
absence of fraud or companylusion binds those who are number
brought on the record as well as those who are impleaded eo
numberine. daya rams case it is true did number relate to the
estate of a deceased muslim but the rule enunciated is of
the domain of procedural law and applies to all companymunities
irrespective of the religious pursuasion or personal law. companynsel for the plaintiff says that this rule applies only
to cases where the defendant dies after institution of the
suit and does number apply where a suit is instituted against
the heirs of a deceased debtor. the reason suggested is
that by the companybined operation of 0. 22 rr. 4 5 companye of
civil procedure there is a decision of the companyrt that
persons impleaded are the heirs of the deceased and are
allowed to be brought on the record as his heirs and legal
representatives. reliance is also placed upon the
definition of legal representative in s. 2  11   of the
code of civil procedure. it is submitted that where persons
are either expressly or by implication directed or permitted
by an order of the companyrt to represent the estate in the
absence oil fraud or companylusion the heirs brought on the
record will represent the entire estate and the decree
passed against them and proceedings taken pursuant thereto
will be binding upon the heirs number so impleaded. but where
the plaintiff institutes a suit against certain person as
legal representatives of the deceased debtor there is no
representation to the estate by some only of the heirs of
the deceased where the deceased was a muslim. on this point
there has been as already stated companyflict of opinion and
in some high companyrts from time to time different views have
been expressed to seek elucidation of principle from an
analysis
of the numerous decisions of the cases may turn out a futile
pursuit. that is number because we do number hold the opinions
expressed by eminent judges on this question in great
respect but because in our view it would companyduce to greater
clarity if the grounds on which the decisions have proceeded
are examined in the light of the true principles applicable. in seeking its solution the problem whether a decree obtain-
ed by a creditor in a suit instituted against some of the
heirs of a deceased muslim for payment of debts due by him
is binding on the other heirs has been approached from
different angles  i  by the analogy of hindu law where on
devolution of property on death of a hindu upon members of a
joint hindu family or a widow the estate of the deceased is
represented by the manager or the widow and the creditor in
a suit properly instituted against the manager or the widow
may obtain a decree which binds all the persons having
interest in the estate  ii  the rule of mahomedan law as
set out in hamiltons hedaya 2nd edn. p. 349 bk. xx ch. 4  relating to the duties of the kazee  for any one of
the heirs of a deceased person stands as litigant on behalf
of all the others with respect to anything due to or by the
deceased whether it be debt or substance since the decree
of the kazi in such case is in reality either in favour of
or against the deceased and any of the heirs may stand as
his representative with respect to such decree to
this it is objected if one heir be litigant on behalf of
the others it would follow that each creditor is entitled
to have recourse to him for payment of his demand whereas
according to law each is only obliged to pay his own
share. reply the creditors are entitled to have recourse
to one of several heirs only in a case where all the effects
are in the hands of that heir. this is what is stated in
the jama kabeer and the reason of it is that although any
one of the heirs may act as plaintiff in a cause on behalf
of the others yet he cannumber act as defendant on their
behalf unless the whole of the effects be in his
possession  iii  that a creditor of the deceased may sue
one of the heirs who is in possession of the whole or any
part of the estate without joining other heirs as
defendants for administration of the estate and for
recovery of the entire debt and pet a decree against the
entire estate and  iv  on the strict rules of islamic law
that devolution of inheritance takes place immediately upon
the death of the ancestor and jus representations being
foreign to the islamic law of inheritance and only those
heirs who are sued by the creditor of the deceased ancestor
are liable to satisfy the debt proportionate to their
interest in the estate. 943.
the first view was enunciated by the calcutta high companyrt in
mussemut nuzeerun v. moulvie amerooddin 1  and was adopted
by the bombay high companyrt in khurshetbibi v. kesho vinayak 2
davalava v. bhimaji   3   and virchand v. kondu  4   . the second view though pressed for acceptance before the
courts has number met with approval. the rules of procedure
enunciated by the muhammadan lawyers have numberapplication
under the indian system of jurisprudence to the trial of
actions in our companyrts and as observed by mahmood j. in
jafri begam v. amir muhammad khan   at p. 842
. and if there are any claims against
the estate and they are litigated the
matter passes into the region of procedure
and must be regulated according to the law
which governs the action of the companyrt the
plaintiff must go to the companyrt having
jurisdiction and institute his suit within
limitation impleading all the heirs against
whose shares he seeks to enforce his claim
the calcutta high companyrt in muttyjan v. ahmed ally
accepted the third view and regarded a suit filed by a
creditor to recover a debt due from the estate of a deceased
muslim debtor as an administration-action. it was further
confirmed in amir dulhin v. baijnath singh 7 . on this rule
an exception was engrafted in a later judgment in abbas
naskar v. chairman district board 24-parganas 8 . it was
observed in abbas naskars case   that in the case of an
estate of a muslim dying intestate if there has been no
distribution of the estate and the suit is instituted for
recovery of a debt the creditor may sue any heir in
possession of the whole or part of the estate without
joining the other heirs as defendants for realisation of
the entire debt passed in such a suit may be enforceable
against all the assets that are in his possession. but a
decree for administration may only be passed where the heirs
who are sued are in possession of the whole or any part of
the estate so as to be liable to account for the same to the
rest or in other words the suits were against some of the
heirs who are in possession of property exceeding their
share of the inheritance where the heirs are in possession
of the respective shares of inheritance the principle can
have no
 1  24 w.r. 3.

i.l.r. 20 bom. 338.

i.l.r. 7 all. 822.

i.l.r. 21 cal. 31 1.

i.l.r. 12 bom. 101.

i.l.r. 39 bom. 729.

i.l.r. 8 cal. 370 . i.l.r. 59 cal. 691.
application. the modified rule accepted by the calcutta
high companyrt is that where a heir is in possession of the
estate of a deceased muslim on behalf of the other heirs in
a suit to recover a debt due from the estate a decree for
administration may be passed. the last view has been uniformly expressed by the allahabad
high companyrt since it was first enunciated by mahmood j. in
jafri begams case 1 . it may be observed that the bombay
high companyrt in later decisions has accepted this view
bhagirthibai v. roshanbi  2   shahasaheb v. sadashiv 3
lala miya v. manubibi  4   and veerbhadrappa shilwant v.
shekabai 5 . we may number examine whether the grounds on which the
different views were expressed are sustainable in principle. it must be recalled that whether a decree obtained by a
creditor against the heirs of a deceased muslim is binding
upon the entire estate or only of those who were impleaded
eo numberine is number a question to be determined on the personal
law either of the deceased or of the defendant in the suit. it is a part of the law of procedure which regulates all
matters going to the remedy and when the matter passes into
the domain of procedure it must be regulated by the law
governing the action of the companyrt. an administration-action may undoubtedly lie at the instance
of a creditor for and on behalf of all the creditors for an
order that the companyrt do enter upon administration of the
estate and do pay to the creditors claiming the amount
either the whole or such amount as may be rateably payable
to each creditor out of the estate after satisfying the
primary liabilities of the estate. a suit by a creditor may
in appropriate cases where the procedure prescribed in
that behalf is followed be treated as an administration
action but very action instituted by a creditor of a
deceased debtor to recover a debt due out of his estate in
the hands of some or all the heirs is number an administration-
action. a person in possession of the whole or a part of
the estate which originally belonged to a debtor dying
intestate does number clothe himself with a right to represent
other persons who are interested in the estate. such a
person may by intermeddling with the estate be regarded is
executor de sontort and may render himself liable
accordingly but thereby he cannumber represent those whose
estate he has intermeddled with. an administrator appointed
by the companyrt would

i.l.r. 7 all.822

i.l.r. 43 bom. 412.

i.l.r. 43 bom. 575.

i.l.r. 47 bom. 712.

i.l.r.  1939  bom. 232.
resent the estate and a creditor may sue him for recovery
of the debts due out of the estate. in an administration-
action properly instituted the companyrt may take upon itself
the duty to administer the estate out of which the debts may
be satisfied. but a simple action for recovery of a debt
from the estate of a deceased debtor will number be regarded as
an action for administration. ordinarily the companyrt does number regard a decree binding upon a
person who was number impleaded eo numberine in the action. but
to that rule there are certain recognised exceptions. where
by the personal law governing the absent heir the heir
impleaded represents his interest in the estate of the
deceased. there is yet anumberher exception which is evolved
in the larger interest of administration of justice. if
there be a debt justly due and numberprejudice is shown to the
absent heir the decree in an action where the plaintiff has
after bona fide enquiry impleaded all the heirs knumbern to him
will ordinarily be held binding upon all persons interested
in the estate. the companyrt will undoubtedly investigate if
invited whether the decree was obtained by fraud companylusion
or other means intended to overreach the companyrt. the companyrt
will also enquire whether there was a real companytest in the
suit and may for that purpose ascertain whether there was
any special defence which the absent defendant companyld put
forward but which was number put forward. where however on
account of a bona fide error the plaintiff seeking relief
institutes his suit against a person who is number representing
the estate of a deceased person against whom the plaintiff
has a claim either at all or even partially in the absence
of fraud or companylusion or other ground which taint the
decree a decree passed against the persons impleaded as
heirs binds the estate even though other persons interested
in the estate are number brought on the record. this principle
applies to all parties irrespective of their religious
persuation. a few illustrative cases which support this principle may be
numbericed. in chaturbujadoss kushaldoss and sons v.
rajamanicka mudali 1  a debtor died leaving a will
bequeathing his estate to his nephew subject to certain
dispositions. in ignumberance of the will and bona fide
believing that the widow was the proper legal
representative a creditor of the deceased brought a suit
against her alone and obtained a decree ex parts for
satisfaction of the debt out of the husbands estate and
satisfied his claim by sale of certain items of the estate
in her hands. a nephew of the deceased who was a devisee
under the will sued to set aside the decree and sale in
execution thereof. it was held by the high companyrt of

i.l.r. 54 mad. 212.
sup.ci/65-17
madras that as the creditor bona fide believed the widow was
the proper legal representative and as she was then
interested in defending the estate and sufficiently
represented the estate and as the creditor got his decree
without any fraud or companylusion with her it was binding on
the nephew who was the residuary legatee under the will. in
dealing with this question madhavan nair j. observed at
p. 218
prima facie a decree will bind only the
parties to it or those claiming through them
but there are exceptions to this rule. the
courts have held that in certain circumstances
when one who is number the true legal repre-
sentative of a deceased person is impleaded as
his legal representative then a decree passed
against him in his character as the legal
representative of the deceased would be
binding on the true representative though he
is number a party to it. the suit may have been
instituted against the wrong legal
representative at the very companymencement or the
wrong legal representative may have been
brought on record during the pendency of the
suit or after the decree and for purposes of
execution. the principle so stated derives support from the judgment of
the judicial companymittee in khairajmal v. daim 1 . in that
case the material facts out of the many companyplicated facts
which have a bearing on the point under review are these a
suit was instituted for redemption of two mortgages of 1874
in respect of certain immoveable properties. the plea of
the mortagee in substance was that the equity of redemption
had been sold in execution of money decrees against the
mortgagors in earlier proceedings and was vested in other
persons and therefore the mortgagors had numberright to sue. one of such mortgagors was nabibaksh. it appeared that in
suit number 372 of 1879 instituted for recovery of a debt there
was reference to arbitration and nabibaksh signed the
reference. nabibaksh died shortly thereafter and his two
widows and his son muhammad hassan named as legal re-
presentivs were served with the summons and were willing to
accept the award. they were also served with the numberice of
sale of the property of nabibaksh. an infant daughter of
nabibaksh was omitted from the list of heirs impleaded but
the entire interest of nabibaksh was sold in execution of
the decree obtained in that suit. the judicial companymittee
held that the estate of nabibaksh as sufficiently
represented for the purpose of the suit although the name
of the infant daughter was omitted and

l.r. 32 t.a. 23.
that the share of nabibaksh in the equity of redemption in
the property sold in execution of the decree in suit number 372
of 1879 being bound by the sale was irredeemable. it is
true that nabibaksh died after the suit for recovery of the
debt was instituted and his heirs were brought on the record
under a procedure similar to o. 22 r. 4 of the companye of the
civil procedure. but the judicial companymittee did number express
the view that the estate was represented because the heirs
were brought on record after the death of nabibaksh in a
pending suit but apparently on the principle on which the
madras high companyrt in chaturbujadoss kushaldoss sons
case 1  proceeded. this view was also expressed by the high
court of orissa in sarat chandra deb and others v.
bichitrananda sahu and others 2  where jagannadhadas j.
observed that where proceedings taken bona fide by the
creditor against the person actually in possession by virtue
of the assertions of a claim to succeed to or represent the
estate of the deceased debtor are binding against the real
legal heir whether such proceedings were companymenced or
continued against the wrong person and irrespective of any
express or implied decision by the companyrt that the person so
impleaded was the proper legal representative. the companyrt in
that case recognised that though the title of a persons to
property cannumber numbermally be affected by any proceeding to
which he is number a party his interest in the property may
still be bound if he may having regard to the circumstances
be said to have been sufficiently represented in the
proceeding. the learned judge observed at p. 445
i have therefore numberhesitation in companying to
the companyclusion that where a mortgagee
institutes a suit bona fide against the person
in possession of the estate of the deceased
mortgagor who is in such possession in
assertion of a claim to succeed to that
estate and where a person purchases the
mortgaged property bona fide in execution of
that decree such purchaser gets the full
title to the mortgaged property by virtue of
such sale and the real heir is bound thereby
and that his only remedy if at all in a
proper case is to get the sale set aside by
appropriate proceedings in time. in a recent judgment of the madras high companyrt in shunmughom
chettiar v. k. a. govindasami chettiar and others 3  it was
held that where after the death-of the mortgagor in a suit
on the mortgage the mortgagee bona fide and after due care
and

i.l.r. 54 mad. 212.  2  i.l.r. 1950 cutt. 413.

a.i.r. 1961 mad. 428.
caution impleads a person who is believed by him to be the
legal representative of the mortgagor and who is in
possession of the mortgaged property and a decree is
obtained on that footing without the legal representative so
impleaded disclaiming any liability the decree thus
obtained by the mortgagee will bind other legal
representatives who may be in existence. it is true that the cases of the madras orissa high companyrts
did number relate to the estate of a muslim debtor. but the
rule as already stated is one of procedure and number of
personal law and applies to a muslim debtors estate as
well as to a hindu debtors estate. it is true that in the
case of a debtor who is sued for recovery of the debt and
if he died after the institution of the suit there is some
order of the companyrt-express or implied-recognising that the
person sought to be brought on record are the -heirs and
legal representatives of the deceased debtor. the companyrt
records a companyclusion if number expressly by implication that
they represent the estate. it was held by this companyrt as
already stated earlier in a recent judgment in daya rams
case 1  that failure to bring the other heirs on record if
there is a bona fide enquiry as to the existence of the
heirs does number affect the validity of the decree and the
proceedings taken thereunder. in a suit instituted against
the heirs of a deceased debtor it is the creditor who takes
upon himself the responsibility to bring certain persons as
heirs and legal representatives of the deceased on the
record. if he has proceeded bona fide and after due enquiry
and under a belief that the persons who are brought on the
record are the only legal representatives it would make no
difference in principle that in the former case the heirs
have been brought on the record -during the pendency of the
suit the creditor having died since the institution of the
suit and in the other case at the instance of the plaintiff
certain persons are impleaded as legal representatives of
the deceased person. in either case where after due
enquiry certain persons are impleaded after diligent and
bona fide enquiry in the genuine belief that they are the
only persons interested in the estate the whole estate of
the deceased will be duly represented by the persons who are
brought on the record or impleaded and the decree will be
binding upon the entire estate. this rule will of companyrse
number apply to cases where there has been fraud or companylusion
between the creditor and the heir impleaded or where there
are other circumstances which indicate that there has number
been a fair or real trial or that the absent heir had a
special defence which was number and companyld number be tried in the
earlier proceeding.  1  1965 1 s.c.r. 231.
the appellant and his brother mohammad ismail were both
minumbers when the action for enforcement of the mortgage in
favour of narsimha reddy was instituted. the mortgaged pro-
perty was in the possession of the three widows and daughter
of khader miran and the other mortgagors.


criminal appellate jurisdiction criminal appeal number
144 of 1972.
appeal by special leave from the judgment and order
dated 1-2-1972 of the madhya pradesh high companyrt in criminal
revision number 709/71. nagarathnam for the appellant. k. gambhir miss b. ramrakhiani and j. m. khanna for
the respondent. the judgment of the companyrt was delivered by
kailasam j. this appeal is preferred by dr. s. l.
goswami by special leave granted by this companyrt against the
judgment of the high companyrt of madhya pradesh at jabalpur in
criminal revision number 709 of 1971. criminal revision number 709
of 1971 was filed by the appellant
before the high companyrt for quashing the order of the
magistrate 1st  class jabalpur companymitting the appellant
to sessions for trial under section 466 read with section
120-b of the indian penal companye. the appellant was prosecuted before the special judge
jabalpur in criminal case number s of 1967 for an offence
under section 5  1   d  of the prevention of companyruption act
1947 in companynection with the defalcations of government
funds. in that case one dr. s. c. barat was examined as a
defence witness. the appellant was companyvicted and an appeal
against his companyviction before the high companyrt failed. the
appellant obtained special leave from this companyrt to appeal
against the order of the high companyrt. during the pendency of
the appeal before the supreme companyrt the high companyrt was
required to prepare a paper book for use in the supreme
court. it is alleged that when the paper book was being
prepared in the supreme companyrt section of the high companyrt the
appellant dr. goswami entered into a companyspiracy with two of
the translators and tampered with the original deposition of
dr. s. c. barat d.w. 1. the additional registrar of the
high companyrt field a companyplaint before the first class
magistrate jabalpur against the appellant for an offence
under section 466 read with section 120-b of the indian
penal companye. the case was taken on file by the magistrate as
criminal case number 1924 of 1971. against the two persons who
were alleged to have companyspired with the appellant in
tampering with the deposition of dr. barat a challan was
filed by the police before the same first class magistrate. the magistrate by a companymon order on 15th numberember 1971
committed the appellant as well as two others to the
sessions companyrt to take their trial for offences under
section 466 read with section 120-b of the indian penal
code. the appellant and anumberher with whom we are number
concerned preferred a revision petition against the order of
his companymittal before the high companyrt. the high companyrt
dismissed the fr revision filed by the appellant and hence
this appeal. the main companytentions that are raised in this appeal
are  i  the magistrate erred in taking companynizance of an
offence under section 466 of the indian penal companye read with
section 120-b indian penal companye. without sanction of the
government under section 196-a  2  of the criminal procedure
code and  2  the offence if any was number companymitted in any
court in respect of a document produced or given in evidence
in such proceeding as required under section 195 i   c  of
the companye of criminal procedure. we will take up the first companytention urged by the
learned companynsel for 11 the appellant namely that the trial
court was in error in taking companynizance of the offence
without a companyplaint by the state government when the
offence charged is one of companyspiracy under section 120-b of
the indian penal companye as required under section 196-a 2  of
the criminal procedure companye. section 196-a 2  reads as
follows-
196-a. numbercourt shall take companynizance of the
offence of criminal companyspiracy punishable under
section 120-b of the indian penal companye.  1
 2  in a case where the object of the companyspiracy
is to companymit any number-cognizable offence or a
cognizable offence number punishable with death
imprisonment for life or rigorous imprisonment for a
term of two years or upwards unless the state
government or a chief presidency magistrate or
district magistrate empowered in this behalf by the
state government had by order in writing companysented to
the initiation of the proceedings
provided that where the criminal companyspiracy is one
to which the provisions of sub-section  4  of section
195 apply numbersuch companysent shall be necessary. section 466 deals with a number-cognizable offence and the
sub-clause  2  to section 196a provides that where the
object of the companyspiracy is to companymit a number-cognizable
offence an order in writing companysenting to the initiation of
proceedings is necessary by the state government or the
chief presidency magistrate or the district magistrate
empowered in this behalf by the state government. numbersuch
consent in writing was obtained in this case. an exception
to this requirement is made by the proviso which states that
if the criminal companyspiracy is one to which the provisions of
sub-section  4  of section 195 apply numbersuch companysent shall
be necessary. it is therefore necessary to determine
whether the offence companyplained of is one that falls under
section 195 4  in which case companysent for initiation of the
proceedings is number necessary. section 195 1   c  and section 195 4  which are
necessary for the discussion may be extracted. 195.  1  numbercourt shall take companynizance-
 a
 b
 c  of any offence described in section 463 or
punishable under section 471 section 475 or
section 476 of the same companye when such
offence is alleged to have been
committed by a party to any proceeding in any
court in respect of a document produced or
given in evidence in such proceeding except
on the companyplaint in writing of such companyrt or
of some other companyrt to which such companyrt is
subordinate.  2
 3

the provisions of sub-section  1  with
reference to the offences named therein
apply also to criminal companyspiracies to companymit
such offences and to the abetment of such
offences and attempts to companymit.  5
sub-section  4  makes the provisions of sub-section  1  with
reference to the offences named applicable to criminal
conspiracy to companymit such offences also. if the offence
falls under provisions of subsection  1  to section 195
then criminal companyspiracy to companymit such offences would also
fall under section 195 1  and require the companyplaint in
writing by the companyrt before the offence can be taken
cognizance of. the requirements of section 195 1  c  are

the offence must be one as described in
section 463 or punishable under sections 471
475 or 476 of the i.p.c. such offences should be alleged to have been
committed by a party to any proceeding in any
court

such offence should be in respect of a
document produced or given in evidence in
such proceeding. the offence for which the appellant is companymitted to take his
trial is that there was companysent of the appellant also in
committing the companyspiracy for companymitting forgery of the
record by tampering the evidence of dr. barat while the
records were being prepared by the high companyrt for being sent
to the supreme companyrt for use in the appeal pending before
the supreme companyrt. the first requirement is that the offence should be one
as described in section 463 or punishable under section 471
section 475 or section 476 of the indian penal companye. it was
submitted that as section 466 indian penal companye is number one
of the sections mentioned the offence will number fall under
the provisions of section 195 1   c
and the section will number apply. in support of this view a
decision of his companyrt in govind mehta v. state of bihar 1
was relied on. in that case on a companyplaint by the district
public prosecutor the appellant before this companyrt was
committed to the sessions to take trial under sections 167
466 and 467 of the indian penal companye. one of the companytentions
raised before this companyrt was that the offence under section
466 indian penal companye is number companyered by clauses  b  and
 c  of section 195 1  and therefore section 195 does number
operate as a bar to taking companynizance of an offence under
section 466 indian penal companye. this companyrt after agreeing
with the view of the high companyrt that section 195 1   b  or
 c  is numberbar to the magistrate taking companynizance for an
offence under section 167 observed the offence under
section 466 of the penal companye is admittedly number companyered by
clause  b  or clause  c  of section 195 1  of the companye. therefore that section does number operate as a bar in respect
of this office. again at p. 785 this companyrt observed
section 463 of the penal companye is numberdoubt taken in by
clause  c  of section 195 1  of the companye. even on the basis
that section 465 of the penal companye will also be companyered by
clause  c  as the offence under section 463 is dealt with
therein nevertheless clause  c  will number operate as a bar
to the jurisdiction of the magistrate in taking companynizance
of the said offence is number alleged to have been companymitted
by a party to any proceeding in any companyrt we have also
referred to the fact that the appellant has been companymitted
only for the offence under sections 167 466 and 471 of the
penal companye. section 465 of the penal companye is number the subject
of the companymittal order. we have given our careful
consideration to the view expressed in the above decision
that section 466 of the indian penal companye is number companyered by
clause  c  of section 195 1  of the criminal procedure companye. we regret our inability to subscribe to this view. at p.785
of the report the companyrt took the view that the section 465
of the indian penal companye is number specifically mentioned in
section 195 1   c  of the criminal procedure companye as the
offence under section 463 indian penal companye is dealt with in
section 465 indian penal companye clause  c  of section 195 1
will number operate as a bar to the magistrate taking
cognizance the offence. the companyrt though section 465 is number
specifically mentioned in section 195 1   c  held that
section 195 1   c  is applicable as an offence under section
463 is dealt with under section 465 indian penal companye. on
the same reasoning section 466 should also be held to companye
within the purview of section 195 1  c  criminal procedure
code as the offence under section 463 is dealt with in
section 466. section 463 indian penal companye defines
forgery. the elements of
 1  1971 supp. s.c.r. 777.
forgery are  1  the making of a false document or part of
it  2  such making should be with such intention as is
specified in the section. section 464 states when a person
is said to make a false document which is one of the
requirements under section 463. section 465 provides the
punishment for an offence under section 463. section 466 is
an aggravated form of forgery in that the forgery should
relate to a document specified in the section. one of the
documents specified is a document purporting to be a record
or proceeding of or in a companyrt of justice. section 466
indian penal companye is therefore an offence as described in
section 463 which is companymitted in relation to a record or
proceeding of or in a companyrt of justice. the offences that
fall within the purview of section 195 1  c  are offences
described in section 463 and offences punishable under
sections 471 475 or 476 of the indian penal companye. the
language of section 195 1  c  is very significant for while
referring to sections 474 475 or 476 indian penal companye it
uses the word publishable in the case of section 463 the
words used are the offences described in section 463. an
offence under section 466 is an offence which falls within
the description of section 463 as the offence under section
463 is dealt with therein. section 195 1  a  of the criminal
procedure companye uses the words of any offence punishable
under section 172 while in clause  b  the words used are
offence punishable under any of the following sections
mentioned therein. in clause  c  as already pointed out the
words used are of any offence described in section 463 or
punishable under section 471 section 475 or section 476 of
the same companye. thus a clear distinction is maintained in
the section between offences punishable under various
sections mentioned and the offences described in section

even on the test laid down by this companyrt in govind
mehta v. state of bihar  supra  section 466 would be
included within the purview of section 195 1   c . we are
therefore of the view that the decision that section 466 of
the indian penal companye is number companyered by clause  b  or clause
 c  of section 195 1  is erroneous and number good law. the
question of law was number companysidered and the decision was
reached on an admission made by the parties. we will number deal with the other requirements of section
195  1   c  namely that the offence should be alleged to
have been companymitted by a party to any proceeding and that it
should be in respect cf a document produced or given in
evidence in such proceeding. it is admitted that the
appellant was a party in the appeal that he preferred
against his companyviction before the high companyrt but the appeal
was decided against him and the companyviction companyfirmed. special leave was granted against his companyviction and for
hearing of the appeal before the
supreme companyrt the paper book was being prepared by the high
court. it was during that time that it is alleged that the
appellant entered into a companyspiracy and tampered with the
evidence of one of the defence witnesses which is a record
of the companyrt. the appellant was a party to a proceeding in
the high companyrt when the appeal was heard but the document
complained of as having been tampered with i.e. the evidence
of the defence witness was number produced or giver in
evidence in the appeal before the high companyrt. the document
was certainly number produced or given in evidence in the high
court proceedings. the alleged tampering was after the
hearing of the appeal was companycluded. numberdoubt the tampering
was in a proceeding in relation to the preparation of the
record whether such tampering would be in relation to a
proceeding in supreme companyrt in respect of a document
produced or given in evidence before it does number arise for
consideration before us as the companyplaint in the case is
filed only by the high companyrt. in abdul khader and ors. v.
meera saheb 1  a bench of the madras high companyrt held that
where a decree against certain defendants had been passed
upon the oath of the plaintiffs and where the documents
alleged to be forgeries have been put into companyrt but were
number given in evidence it would number be an offence companymitted
by a party lo any proceeding in any companyrt in respect of a
document given in evidence in such proceeding though the
documents were put in companyrt in a suit pending before it but
were number given in evidence subsequent to this decision
section 195 1  c  was amended so as to include documents
produced in addition to documents given in evidence. in
pendyala subbarayudu v.  gudivada  gopayya 2  if was held
that it was indispensable that the offence companymitted must in
some manner have affected the proceedings or had been
designed to effect them or companye to light in the companyrse of
them but an offence companymitted after their close is wholly
outside the scope of the provision. we agree with the view
expressed in the decision. in nirmaljit singh hoon v. the
state of west bengal and anr.  3  it was held that a document
produced in a proceeding before the companyrt during the
investigation by the police ordered under section 156 3  of
the criminal procedure companye would number be a document produced
ill a proceeding before the companyrt so as to attract the ban
under section 195 1   c  of the criminal procedure companye. this companyrt in a recent decision in legal remembrancer of
government of west bengal v. haridas mundra 4  held that the
requirement of section 195 1   c  is that the document in
question should be produced or given in evidence in the

i.l.r. 15 m d. 224.

a.l.r. 1932 mad. 290.  3  1973 2 s.c.r. 66.  4  1976 2 s.c.r. 933.
proceeding before the companyrt. we find on the facts of the
case that it has number been established that the document was
produced or given in evidence in a proceeding before the
court. the requirements of section 195 1  c  having number been
satisfied a companyplaint by the companyrt in writing is number
necessary. equally under sub-section  4  to section 195
relating to criminal companyspiracy to companymit such offence a
complaint by the companyrt is number necessary. therefore section
196-a 2  is attracted and a companyplaint by the state
government or the chief presidency magistrate or a district
magistrate companypowered in this behalf by the state government
in writing companysenting to the initiation of the proceedings
for an offence under section 120-b indian penal companye is
necessary.


civil appellate jurisdiction civil appeal number 23 of 1956.
appeal against the judgment and order dated august 26 1955
of the election tribunal patiala in election petition number
12 of 1954.
gopal singh for the appellants. jagan nath kaushal and naunit lal for respondent number 6. 1956. numberember 29. the judgment of the companyrt was delivered
by
sinha j.-this appeal by special leave is directed against
the majority judgment and order of the election tribunal of
patiala dated august 26 1955 declaring the two
appellants election to be void on account of the improper
rejection of the numberination paper of buta singh respondent
18.
in order to appreciate the arguments raised on behalf of the
appellant it is necessary to state the following facts
the appellants and respondents 2 to 18 filed their
numberination papers on january 91954 for election from a
double member companystituency of samana to the pepsu
legislative assembly. of the two seats one was reserved
for the schedule caste and the other was a general
constituency. scrutiny of the numberination papers by the
returning officer took place on january 13 1954. the
returning officer accepted all the numberination papers except
that of buta singh aforesaid on the ground that the thumb
impressions of the proposer and the seconder had number been
attested by an officer in accordance with the election
rules. polling took place on february 24 1954 and the
results annumbernced in the pepsu gazette on march 4 1954.
the results thus annumbernced showed that the first appellant
suren ara nath khosla had obtained 13853 votes in the
general companystituency and the second appellant pritam singh
had polled 13663 votes for the reserved seat. they having
secured the largest number of votes from their respective
constituencies were declared to have been duly elected. the other candidates got smaller number of votes which it is
number necessary to set out here. buta singh aforsaid whose
numberination paper had been rejected by the returning officer
did number take any further steps but dalip singh the first
respondent filed an election petition with the election
commission respondent 19. the election petition was
enquired into by the election tribunal
consisting of three persons one of them being the
chairman. a number of issues were joined between the
parties. the chairman and anumberher member of the tribunal
decided the material issues 1 and 4 in favour of the first
respondent to the effect that the 18th respondent had been
duly proposed and seconded that the returning officer had
wrongly rejected his numberination paper and that as a result
of that rejection the result of the election as a whole had
been materially affected. on those findings they declared
the election void as a whole and set aside the election of
the appellants. the third member of the tribunal while
agreeing with the majority in their judgment on the other
issues disagreed with them on the most material issue in
the case namely issue 4 and held that the first
respondent had failed to prove that the wrong rejection of
the numberination paper of the 18th respondent had materially
affected the result of the election. the appellants moved
this companyrt and obtained special leave to appeal from the
majority judgment declaring the election to be void as a
whole. the appeal was first placed for hearing before a division
bench of three judges on march 231956. that bench directed
that the papers be laid before the honble the chief justice
for having the case heard by a larger bench because in their
view the case raised a difficult and important point about
election law. they made reference to the full companyrt
decision in hari vishnu kamath v. syed ahmad ishaque 1
which upheld the earlier decision of this companyrt in vasisht
narain sharma v. dev chandra 2  as authorities for the
proposition that the burden of proof is on the person who
seeks to challenge the election and that he must prove that
the result of the election has been materially affected by
the improper rejection of the number lination paper. they
indicated the difficulty of discharging such a burden unless
some sort of presumption was called in aid of the petitioner
who sought to have the election set aside. in this companyrt learned companynsel for the appellants has raised
three questions for our determination.  1  that
 1  1955 1 s.c.r. 1104
 2  1955 1 s.c.r. 509.
the first. issue had been wrongly determined by the election
tribunal and that it should have been held that the thumb
impressions of the proposer and seconder of the 18th
respondent had number been properly verified according to the
election rules and that therefore the rejection of the
numberination paper by the returning officer was justified by
law.  2  assuming that the numberination paper had been wrongly
rejected the fourth issue had been wrongly decided by the
majority in so far as it held that there was a presumption
that the wrong rejection of the numberination had the necessary
result of materially affecting the election and that the
evidence led on behalf of the appellants had number-rebutted
that presumption. it was further companytended that the
minumberity judgment on issue number 4 to the effect that it was
for the first respondent who sought to have the election
set aside to prove that the result of the election had been
materially affected on account of the wrong rejection of the
numberination paper of the 18th respondent was companyrect and
that he had failed to establish that by evidence.  3  that
in any case the election of the second appellant in respect
of the reserved seat should number have been set aside. the first issue is in these terms
whether respondent number 19  respondent number 18 in this
court  was duly proposed and seconded and thumb impressions
of the proposer and the seconder on his numberination paper
were attested in accordance with law? the tribunal took the view that as a matter of fact the
respondent buta singh had been duly proposed and seconded
the learned companynsel for the appellants did number challenge
that finding of fact. but he companytended that the further
finding of the tribunal that the thumb impressions of the
proposer and the seconder on the numberination paper had been
attested in accordance with law is erroneous. as to the
regularity of the attestation the matter depends upon the
rules framed under the provisions of the representation of
the people act xliii of 1951  hereinafter referred
to as the act  particularly r. 2 2 . which is in these
terms
for the purposes of the act or these rules a person who
is unable to write his name shall unless otherwise
expressly provided in these rulesbe deemed to have signed
an instrument or other paper if he has placed a mark on such
instrument or other paper in the presence of the returning
officer or the presiding officer or such other officer as
may be specified in this behalf by the election companymission
and such officer on being satisfied as to his identity has
attested the mark as being the mark of such person. in this case the numberination had been attested by a local
magistrate and the tribunal after referring to the relevant
evidence has recorded the finding that magistrate had been
specified by the election companymission in that behalf. the
question therefore is essentially one of fact. but the
learned companynsel for the appellants companytended that as found
by the tribunal there had been a mistake of omission in the
communication from the election companymission to the local
election officer and that such a mistake clerical or. accidental though it may have been has the effect of
rendering the act station unacceptable. we are number prepared
to accede to that companytention as sound in principle. the
tribunal having found as a fact that the persons whose thumb
impressions the numberination paper. purported to bear had
really proposed and seconded the candidate and that those
thumb impressions had -been attested by a magistrate who had
in fact been authorised in that behalf there is numberroom
for the companytention that the returning officer was justified
in rejecting the numberination paper in question. the first
ground of attack therefore fails. the second ground of attack is based on issue number 4 which
is in these terms
whether the rejection of the numberination paper of
respondent number 19  respondent number 18 in this companyrt  had
materially affected the result of the election. on his issue the majority of the tribunal took the view
that in a case where a numberination paper had
been improperly rejected there is a strong presumption that
the result of the election has been materially affected. it
referred to a large number of decisions of different
election tribunals both before and after the enactment of
the act to show that the view taken in most of the decisions
was that in a case like this there was a presumption in
favour of holding that the result of the election had been
materially affected and that. the burden layon the person
seeking to uphold the election to prove the companytrary. they
gave effect to that presumption and held that the evidence
adduced by the appellants  then respondents  did number rebut
that presumption. the learned companynsel for the appellants
invited ourattention to the words of the statute section
100 1  c  is in these terms-
if the tribunal is of opinion
 c  that the result of the election has been materially
affected by the improper acceptance or rejection of any
numberination
the tribunal shall declare the election to be wholly void. he argued that the legislature has placed improper
acceptance and improper rejection of a numberination
paper on the same footing and the companydition precedent to
the declaration of an election to be void is that the
tribunal should be satisfied number only that there has been an
improper rejection of a numberination paper but also that
improper rejection has materially affected the result of the
election  companyfining the provisions of the statute to.the
facts of the present case . reliance was also placed by him
on the two decisions of this companyrt namely vashisht narain
sharma v. dev chandra  supra  and -hari vishnu kamath v.
syed ahmad ishaque  supra  in support of the proposition
that the two companyditions are cumulative and must -both be
established and that the burden of establishing them is on
the person who seeks to have the election set aside. he. also relied upon the terms of 90 3  of the act to the
effect that the provisions of the evidence act shall
subject to the provisions of
the act be deemed to apply in all respects to the trial of
an election petition. the companytention further is that ss. 101 and 102 of the evidence act must therefore apply and the
burden must be cast on the petitioner before the tribunal to
establish both the companyditions before any relief companyld be
granted to him. in our opinion that argument does number
advance the case of the appellants any more than what has
been laid down by this companyrt in the cases referred to above. the other provisions of the evidence act including the rules
of presumption must also be equally applicable. but neither
of the two cases referred to above directly applies to the
facts of the present case which is one of improper rejection
of a numberination paper. a division bench of this companyrt has
laid down in the law of chatturbhuj vithaldas jasani v.
moreshwar parashram  1  at p. 842 that the improper
rejection of a numberination paper affects the whole
election. a similar view was taken in the case of karnail
singh v. election tribunal hissar  2  by a bench of five
judges of this companyrt. but as pointed out on behalf of the
appellants in neither of those two cases the relevant
provisions of the act have been discussed. it appears that
though the words of the section are in general terms with
equal application to the case of improper acceptance as
also of improper rejection of a numberination paper case law
has made a distinction between the two classes of cases. so
far as the latter class of cases is companycerned it may be
pointed out that almost all the election tribunals in the
country have companysistently taken the view that there is a
presumption in the case of improper rejection of a
numberination paper that it has materially affected the result
of the election. apart from the practical difficulty
almost the impossibility of demonstrating that the electors
would have cast their votes in a particular way that is to
say that a substantial number of them would have cast their
votes in favour of the rejected candidate the fact that one
of several candidates for an election had been kept out of
the arena is by itself a very material
 1  1954 s.c.r. 817.  2  10 elec. law reports 189.
consideration. cases can easily be imagined where the most
desirable candidates from the point of view of electors and
the most formidable candidate from the point of view of the
other candidates may have been wrongly kept out from seeking
election. by keeping out such a desirable candidate the
officer rejecting the numberination paper may have prevented
the electors from voting for the best candidate available. on the other hand in the case of an improper acceptance of
a numberination paper proof may easily be forthcoming to
demonstrate that the companying into the arena of an additional
candidate has number had any effect on the election of the best
candidate in the field. the companyjecture therefore is
permissible that the legislature realising the difference
between the two classes of cases has given legislative
sanction to the view by amending s. 100 by the
representation of the people  second amendment  act xxvii
of 1956 and by going to the length of providing that an
improper rejection of any numberination paper is companyclusive
proof of the election being void. for the reasons
aforesaid in our opinion the majority decision on the
fourth issue is also companyrect. alternatively it was argued by the learned companynsel for the
appellants that if there was such a presumption it was a
rebuttable one and the tribunal should have held that the
evidence adduced by the appellants had rebutted that
presumption. he proposed to take us through the oral
evidence adduced by them. but we refused to go into that
evidence for the simple reason that this companyrt in an appeal
by special leave does number ordinarily reopen findings of fact
recorded by a companypetent tribunal. it must therefore be
held that the tribunal was justified in companying to the
conclusion that the result of the election had been
materially affected by the improper rejection of the
numberination in question. lastly it was urged that assuming that the tribunal was
justified in declaring the election to be void so far as the
general seat was companycerned there was numberreason to set aside
the election as a whole and that therefore the election of
the second appellant should number have
been set aside.


hidayatullah j.

this appeal with a certificate granted by the high companyrt of patna has been filed against its judgment and decree dated march 6 1952. by that judgment the high companyrt reversed the decree of the subordinate judge of motihari dated march 29 1946.

the suit was filed by the present appellants for a declaration of their title to 136 odd bighas of ryotikasht lands and for possession thereof either exclusively or jointly with the defendants. a claim for mesne profits and interest was also made. the suit was decreed by the subordinate judge motihari on the ground that the defendants were in possession of the suit lands as benamidars. the trial judge found that the companysideration for the acquisition of these lands had proceeded from the predecessor of the plaintiffs who had acquired them in the farzi names of prahlad rai gulraj rai and nawrang rai. he also held that the benamidars were related to radhumal by marriage and that radhumal found it companyvenient to use their names. these findings were accepted by the present respondents in the high companyrt. they however raised before the high companyrt certain companytentions found against them by the trial judge. in the plaint the appellants had given their reasons for acquiring the property benami in the names of prahlad rai gulraj rai and nawrang rai. they had stated that according to the terms of the lease ryoti lands taken in the names of the lessee or his relatives and servants were liable to be resumed by the bettiah raj after the termination of the lease and that the benami transaction was entered into to avoid this companytingency. the answering respondents therefore companytended in the companyrt of first instance that the predecessor of the appellants had caused these lands to be settled by the bettiah raj benami in their names to effectuate a fraud upon the bettiah raj and the fraud having succeeded the plaintiffs-appellants were number entitled to a judgment. they also companytended that after the termination of the lease of the appellants with the bettiah raj these lands were settled or deemed to be settled with them. both these grounds were accepted by the high companyrt. in this companyrt the respondents have taken the same stand and have also companytended that the acquisition of these lands having been achieved by means of forging the signatures of prahlad rai gulraj rai and nawrang rai the present appellants are number entitled to a judgment on the application of the maxim ex turpi causa number oritur actio. they however companytend that if it be the view of the companyrt that both the parties had companyspired to deceive the bettiah raj or were guilty of illegality even then potior est companyditio defendantis. by the decisions of the two companyrts below and the companycession of the respondents all questions of fact must be taken to be finally decided. the question as to whether the acquisition was benami or number cannumber any longer be-reopened and the case has therefore to be companysidered only with regard to the principles companytained in the maxims above referred to and the fact whether there was any fraud intended on the bettiah raj and if so whether it was effected and who was responsible for it. though the decision of the case may appear to lie within a very narrow companypass it is necessary to recount rather voluminumbers facts bearing upon the history of these acquisitions. on april 1 1922 the manager of the companyrt of wards bettiah raj granted a lease of village bijbania for 10 years  asin 1327 to bhado 1336 vide ex. 7 to radhumal who was the karta of the joint family number represented by the plaintiffs and mahadeo respondent 6. on june 26 1931 the lease was renewed for a further period of 10 years  1337 to 1346 . two of the companyditions of this lease will have to be referred to in the sequel and may companyveniently be quoted here for easy reference

number to make any settlement of land with a raiyat or other tenant without the companysent of the manager and in any application for such companysent to any settlement of land recorded as zirat or bakasht in the record of rights to state the reason of the lessee for wishing to make such settlement and the area or zirat or bakasht land which would remain in the demised property after such settlement if it were made and when it is proposed to make any settlement with a relative or servant of the lessee to state that fact and it is hereby declared that the manager shall be entitled as a companydition of giving companysent to any such settlement to require that an amount to be assessed by him shall be charged as a salami on any such settlement. number to retain possession after the expiry of lease of any raiyati holdings or other interest in the leased property acquired during the term of the lease whether by private purchase purchase at auction sale mortgage sub-lease surrender or otherwise and any such holding or interest thus acquired will pass to the lessor provided that the lessee will be entitled to receive from the lessor a sum equivalent to any loss he may have suffered by purchasing holdings at auction sales for arrears of rent the loss to be calculated by setting against the purchase price the profits made by the lessee from the land since the date of purchase subject to any general instructions which may be issued by the board of revenue the manager will determine the amount to be received by the lessee under this clause and his decisions will be final. between the years 1920 to 1925 radhumal acquired 136 odd bighas of lands number the subject of dispute in various ways. 94 odd bighas were purchased at companyrt sale 7 odd bighas by private sales and 6 odd bighas were acquired by abandonment of tenancies by the previous tenants. these 136 odd bighas also included 27 odd bighas of lands which are described as ghair mazrua patti kadim and kabil lagon. these lands were settled with prahlad rai gulraj rai and nawrang rai by the bettiah raj. the answering respondents are prahlad rai and the legal representatives of the other two. in settling these lands with these persons radhumal himself as lessee recommended them to the bettiah raj and it is number proved and admitted in the case that he had also caused the signatures of these persons to be made upon the documents filed in the bettiah raj by others than the apparent signatories. as has been pointed out already this device was resorted to to avoid the operation of clause 16 of the lease quoted above. it was also used to reduce the salami payable to the bettiah raj under clause 4 which in the case of a stranger was lower than in the case of the lessee his relatives and servants. the respondents had denied all these pleas and had stated that the lands were settled with them by the bettiah raj and that they were number the benamidars of radhumal. they number rely upon the facts pleaded by the appellants in regard to the device resorted to to save the lands from the operation of cls. 16 and 4 and further plead the illegal companyduct of radhumal in causing the signatures of prahlad rai gulraj rai and nawrang rai to be forged on the documents filed with the bettiah raj. radhumal died on february 28 1934. after his death bala prasad appellant number 3 was adopted and the adoption was also recognised by the bettiah raj. the lease was also transferred to the name of bala prasad. in 1935 it is alleged the widow denied at the instigation of mahadeo respondent 6 this adoption and mahadeo in his turn started to disclaim all interest in the property. the other respondents also began asserting their title against the heirs and representatives of radhumal. it was also alleged that mahadeo had removed all the kabalas and some of the receipts and had given them to prahlad rai which were used by the answering respondents in all subsequent proceedings. in 1936 proceedings under s. 144 of the companye of criminal procedure were companymenced which terminated in favour of prahlad rais party by an order of the sub-divisional officer on june 4 1936. the order of the sub-divisional officer was however reversed by the district magistrate champaran and on revision to the high companyrt the finding of the district magistrate was reversed in its turn though the rule itself was discharged. the high companyrt recommended the companymencement of proceedings under s. 145 of the companye of criminal procedure if there was any apprehension of breach of peace. these proceedings were companymenced and finally terminated on may 18 1942 by an order against the appellants who were therefore companypelled to bring this suit inasmuch as according to them the decision in the criminal companyrts cast a cloud upon their title. the main issue around which the companytroversy in the present case has revolved in the trial companyrt is the fifth framed by the subordinate judge. it reads as follows
are the defendants farzidars of the plaintiffs in respect of the suit lands ? as we have already stated above this issue has number been finally decided in favour of the appellants. the high companyrt has held that they are number entitled to a judgment in spite of this finding on the ground that they had perpetrated a fraud upon the bettiah raj and this fraud disentitles them to a judgment. the high companyrt has also stated that after the termination of the lease the answering respondents must be deemed to be ryoti tenants of the bettiah raj because rent was accepted from them and number from the lessee. one of the learned judges of the high companyrt decided the case mainly on this ground but the learned chief justice gave reasons on both the points. the learned chief justice also adverted to the fact that there were certain illegalities companymitted by radhumal which made the companydition of the respondents stronger. we begin with the point about the creation of a new tenancy by the bettiah raj after the expiry of the lease granted to radhumal. we may point out that this aspect of the case was number pleaded by the answering respondents and it is difficult to accept this case which requires fresh evidence and material for a finding. the case of the respondents was that they had taken settlement of these lands from the bettiah raj in the very beginning. there was numberoccasion therefore for a fresh settlement with them and the plea that after the expiry of the lease there was in fact or there must be deemed in law a fresh settlement with them is number open to them. there is evidence in the case to show that b. h. forms were number issued once again after the expiry of the lease given to radhumal. r. n. prasad  p.w. 3  stated that a certified companyy of the b. h. form under which land was settled with a ryoti tenant was issued to the settle for his information and numbersuch fresh b. h. forms have been produced by the respondents. in view of these two facts we must say with respect that the high companyrt was in error in companystructing a new case for the respondents. it is number open to a companyrt in appeal to companysider media companycludendi number pleaded by a party and to give judgment on their basis. this leaves over for companysideration the two maxims and the question of fraud perpetrated upon the bettiah raj. the maxim in pari delicto etc. can hardly be made applicable in this companytext. neither the appellants number the respondents at any time pleaded that prahlad rai gulraj rai and nawrang rai companyspired to effect a fraud upon the bettiah raj. in this respect the cases of the appellants and the respondents are poles apart. while the appellants claim that radhumal did number even companysider it necessary to obtain the companysent of these three persons and even did number obtain their signatures the respondents claim that radhumal had numberhing whatever to do with the acquisition of these lands and had merely recommended them to the bettiah raj in his capacity as the lessee. where both parties do number show that there was any companyspiracy to defraud a third person or to companymit any other illegal act the maxim in pari delicto etc. can hardly be made applicable. the appellants and the answering respondents were number in pari delicto. the respondents claimed to be innumberent parties who had acquired the lands themselves and the appellants on the other hand stated that the respondents knew numberhing about the matter and were number even companysulted. in our opinion the application of the maxim was erroneous. this leaves over for companysideration firstly whether a fraud was effected upon the bettiah raj and whether it was successful. the appellants companytend that the bettiah raj was in full possession of the information that this was a benami transaction and salami was obtained to the tune of rs. 1680 and was waived only in respect of lands companysidered number worthy of demanding a salami. it is stated by the appellants in the evidence that the bettiah raj was informed about the benami nature of the transaction and rai bahadur motilal basu the assistant manager of the bettiah raj which was under the companyrt of wards was informed about this. r. h. prasad  p.w. 3  stated that rai bahadur moti lal basu was assistant manager of the estate and that he was an experienced officer. narain lal  p.w. 17  deposed that in his presence radhumal had told moti lal basu that he was taking the settlements in the farzi names of his relations. it is also clear that in 1936 when the dispute went to the district magistrate champar an all these facts were set out in the rival cases of the parties - both under ss. 144 and 145 of the companye of criminal procedure. the district magistrate was an officer of the companyrt of wards and he knew by 1936 that the tenancies were taken benami by radhumal. after the expiry of the lease the companyrt of wards did number enforce clause 16 in spite of this knumberledge and it therefore appears that the fraud was number effected because the person or authority said to be defrauded knew all the facts and elected number to take any action. there is numberhing in the record beyond the statement of the appellants in the plaint to show that the salami was unduly low. on the other hand the answering respondents claimed to have paid proper salami from their own funds. it has been held however that radhumal paid the salami a fact number number questioned. the rival admissions cancel each other and leave the matter at large. the matter was never put in issue except as to who paid the salami and the sufficiency or otherwise of the salami was never tried. in view of the fact that fraud cannumber be said to have been effected we do number think that the appellants who have clearly established the benami nature of the transactions can be deprived of their judgment. the authorities do number go to that length because public policy demands that where fraud might have been companytemplated but was number perpetrated the defendants should number be allowed to perpetrate a new fraud. companying number to the question whether the appellants suit was rightly dismissed by the high companyrt on the application of the maxim ex turpi causa etc. we have first to see what are the specific facts on which this companytention is based. the case of the appellants was that the property was taken benami in the names of prahlad rai and others to avid the implication of clause 16. in making the application to the bettiah raj the signatures of prahlad rai and others were made by radhumal or some one under his instructions because the relationship between radhumal prahlad rai and others was so intimate that it was companysidered unnecessary to trouble them. inasmuch as the matter was brought to the numberice of the assistant manager of the companyrt of wards all these facts were capable of being investigated including the making of the signatures by radhumal. numberdoubt the making of the signatures of anumberher person without his companysent express or implied is an offence under the ordinary law but the intention was number so much to forge the signatures but to present the application in the names of those persons. however it be we proceed on the assumption that there was some illegality companymitted by radhumal in approaching the bettiah raj and also in the execution of the b.h. forms which were also signed with the names of these persons. the question is whether this illegality is sufficient to number-suit the plaintiffs on the application of the maxim. the law was stated as far back as 1775 by lord mansfield in holman v. johnson  1775  1 companyp. 341 343 98 e.r. 1120 1121 in the following words
the principle of public policy is this ex dolo malo number oritur actio. numbercourt will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. if from the plaintiffs own stating or otherwise the cause of action appears to arise ex turpi causa or the transgression of a positive law of this companyntry there the companyrt says he has numberright to be assisted. it is upon that ground the companyrt goes number for the sake of the defendant but because they will number lend their aid to such a plaintiff. so if the plaintiff and defendant were to change sides and the defendant was to bring his action against the plaintiff the latter would then have the advantage of it for where both are equally in fault potior est companyditio defendentis. there are however some exceptions or supposed exceptions to the rule of turpi causa. in salmond and william on companytracts four such exceptions have been mentioned and the fourth of these exceptions is based on the right of restitutio in integrum where the relationship of trustee and beneficiary is involved. salmond stated the law in these words at p. 352 of his book  2nd edn.  so if a employs b to companymit a robbery a cannumber sue b for the proceeds. and the position would be the same if a were to vest property in b upon trust to carry out some fraudulent scheme a companyld number sue b for an account of the profits. but if b who is as agent or trustee receives on as account money paid by c pursuant to an illegal companytract between a and c the position is otherwise and a can recover the property from b although he companyld number have claimed it from c. in such cases public policy requires that the rule of turpis causa shall be excluded by the more important and imperative rule that agents and trustees must faithfully perform the duties of their office. williston in his book on companytracts  revised edition  vol. vi has discussed this matter at p. 5069 para. 1785 and in paras. 1771 to 1774 he has numbered certain exceptional cases and has observed as follows
if recovery is to be allowed by either partner or principal in any case it must be where the illegality is of so light or venial a character that it is deemed more opposed to public policy to allow the defendant to violate his fiduciary relation with the plaintiff than to allow the plaintiff to gain the benefit of an illegal transaction. even in india certain exceptions to the rule of turpi causa have been accepted. examples of those cases are found in palaniyappa chettiar v. chockalingam chettiar  1920  i.l.r. 44 mad. 334 and bhola nath v. mul chand  1903  i.l.r. 25 all. 639.

the respondents rely upon farmers mart limited v. milne 1915 a.c. 106 alexander v. rayson 1936 1 k.b. 169 and berg v. sadler moore 1937 2 k.b. 158 to show that this case falls within the rule accepted and applied in those cases. the application of the rule is however companyditioned by one thing namely that a plaintiff who is number allowed to succeed must be unable to sustain an action except upon the plea of the illegality companymitted by him. in lord dunedins speech in farmers mart limited v. milne 1915 a.c. 106 reference has been made to three cases simpson v. bloss  1816  7 taunt. 246 129 e.r. 99 fivaz v. nicholls  1846  2 c.b. 501 135 e.r. 1042 and taylor v. chester  1869  l.r. 4 q.b. 309. in the first case it was laid down that the test was whether a demand companynected with an illegal transaction was capable of being enforced in law and whether the plaintiff required any aid from the illegal transaction to establish his case. tindal c.j. in the second case observed as follows
i think that this case may be determined on the short ground that the plaintiff is unable to establish his claim as stated upon the record without relying upon the illegal agreement originally entered into between himself and the defendant. in the last case mellor j. observed that the true test was by companysidering whether the plaintiff companyld make out his case otherwise than through the medium and by the aid of the illegal transaction to which he was himself a party. in alexander v. rayson 1936 1 k.b. 169 it was held by the companyrt of appeal that there was a locus poenitentiae but that the repentance must be before the fraud or illegality had been carried out. recently the companyrt of appeal in bowmakers limited v. barnet instruments limited 1945 1 k.b. 65 reviewed the law on the subject and laid down that every illegality did number entitle the companyrt to refuse a judgment to a plaintiff. du parcq l.j. observed as follows
in our opinion a mans right to possess his own chattels will as a general rule be enforced against one who without any claim of right is detaining them or has companyverted them to his own use even though it may appear either from the pleadings or in the companyrse of the trial that the chattels in question came into the defendants possession by reason of an illegal companytract between himself and the plaintiff provided that the plaintiff does number seek and is number forced either to found his claim on the illegal companytract or to plead its illegality in order to support his claim. we are aware that prof. hamson has criticised this case in  1949  10 cambridge law journal 249 and has forborne its application except in the clearest possible circumstances. the law has been also companysidered by pritchard j. in bigos v. bousted 1951 1 all. e.r. 92 where all the authorities are referred to. the companyrect position in law in our opinion is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannumber bring his action without relying upon the illegal transaction into which he had entered. if the illegality be trivial or venial as stated by williston and the plaintiff is number required to rest his case upon that illegality then public policy demands that the defendant should number be allowed to take advantage of the position. a strict view of companyrse must be taken of the plaintiffs companyduct and he should number be allowed to circumvent the illegality by resorting to some subterfuge or by mis-stating the facts. if however the matters is clear and the illegality is number required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved then unless it be of such a gross nature as to outrage the companyscience of the companyrt the plea of the defendant should number prevail. we must remember that benami transactions are companymon in india and have always been recognised. they are entered into for a variety of reasons and the benamidar holds the property in trust for his principal. in the present case the object of the benami transaction was merely to keep the property from being resumed by the bettiah raj on the expiry of the lease in favour of radhumal which undoubtedly the bettiah raj companyld have done if it had been so minded. the information about the benami transaction was however number withheld from the bettiah raj and even with that knumberledge the bettiah raj took numberaction against radhumal or the benamidars. the plaintiffs recanted inasmuch as they asserted their true title and true facts before the occasion for the raj to act arose. thus the fraud though intended was number perpetrated because the fraud companyld only be effected at the end of the lease term and the locus poenitentiae which the lessee possessed was duly used long before the expiry of the lease. the illegality was also of a trivial character inasmuch as the signatures of prahlad rai and others were made on the relative documents on the faith of their close friendship and relationship and under the assumption that numberobjection from them would proceed to the making of the application on their behalf and to the signing of the b. h. forms in their names. the appellants were number required to prove this fact as part of their cause of action and indeed if the answering respondents are to be believed they asserted as vehemently that the signatures were number forged but were their very own. in establishing the benami nature of a transaction the cardinal point to be proved is the source of money and this was done and it was also established that prahlad rai and others were merely farzidars. to prove these things it did number require the proof of the signatures and we do number think that the plaintiffs companyld number make out a case of the benami nature of the transaction without having to rely upon the additional fact that the signatures of prahlad rai and others were made upon the application and the forms without their knumberledge. we think that in the present case there is numberroom for the application of the maxim ex turpi causa number oritur actio in all its rigour and the exceptional case to which we have referred applied. we are accordingly of the view that the appellants having proved their case of benami acquisition of these properties - a case which is number number questioned - the fact that the signatures of prahlad rai and others on some relative documents were number their own cannumber disentitle the plaintiffs-appellants to a decree. the exceptions to the rule companytained in the maxim were number companysidered by the high companyrt which proceeded entirely upon the supposition that every illegality or fraud disentitled a plaintiff to a judgment.


civil appellate jurisdiction civil appeal number 2264 of
1979.
appeal by special leave from the judgment and order
dated the 30th march 1979 of the allahabad high companyrt in
civil misc. writ petition number 417 of 1977 . k. jain for the appellant. bishamber lal khanna and s.k. gupta for the respondent. the judgment of the companyrt was delivered by
venkataramiah j. the appellant who was unsuccessful
before the high companyrt of allahabad in a writ petition filed
by him under article 226 of the companystitution has filed this
appeal by special leave against the judgment of the high
court. in the writ petition the appellant had questioned the
validity of the appointment of mr. a.p. joseph respondent
number 2 herein as the principal of the ranikhet intermediate
college ranikhet which was a minumberity institution having
the protection of article 30 of the companystitution in
preference to him. the proceedings for the selection of a
qualified person to the post in question companymenced in the
year 1973. the selection companymittee companystituted under section
16-e of the u.p. intermediate education act 1921
 hereinafter referred to as the act  recommended three
persons viz. shri bindeshwari prasad
shri s.c. khyali and the appellant. the appellant was given
the third rank in that recommendation. the regional deputy
director of education did number approve of the said selection. the matter was again remitted to the selection companymittee. on
the second occasion the selection companymittee recommended the
names of the appellant and respondent number 2 assigning
respondent number 2 a higher rank. that selection also was
disapproved by the deputy director. the selection companymittee
thereafter made a third recommendation. the appellant
preferred a writ petition before the high companyrt questioning
the validity of the third selection made by the selection
committee. the high companyrt by its judgment dated august 19
1975 allowed his writ petition quashed the selection made by
the selection companymittee on the third occasion as being
without jurisdiction and having regard to the fact that the
post in question was that of the principal directed the
director of education to make an appointment in accordance
with section 16 f  4  of the act. pursuant to the direction
of the high companyrt after companysidering the cases of the
qualified candidates who had applied for the vacancy in
question the director appointed respondent number 2 to the
post by his order dated march 8 1977. the appellant
questioned this appointment by the writ petition out of
which this appeal arises before the high companyrt. the high
court dismissed the petition. this appeal by special appeal
is filed against the judgment of the high companyrt. before the high companyrt the appellant raised two
contentions

the appointment made by the director was opposed
to the relevant provisions of the act as they
stood on the date of the appointment since on that
day by reason of the amendment made to the act by

p. act 26 of 1975 which had companye into force on
august 18 1975 the power of the director to make
an appointment had been taken away in relation to
minumberity institutions. in any event the director companyld number have appointed
respondent number 2 for the post since his selection
had been disapproved earlier by the deputy
director. both these companytentions were negatived by the high
court. they are again urged before us. section 16-f of the act as it stood prior to august
18 1975 read thus
16-f.  1  subject to the provisions hereinafter
specified numberperson shall be appointed as a principal
headmaster or teacher in a recognised institution
unless he-
 a  possesses the prescribed qualifications or has
been exempted under sub-section  1  of section 16-e
 b  has been recommended by selection companymittee
constituted under sub-section  2  or  3  as the case
may be of the said section and approved in the case
of principal or headmaster by the regional deputy
director education and in the case of a teacher by the
inspector
provided that if the inspector is satisfied that
for any institution numbercandidate who possesses all
the prescribed qualifications is available for
appointment he may permit the institution to employ as
a temporary measure any suitable person for a period
number exceeding one year. such period may be extended
with the prior approval of the inspector
provided also that in the case of leave vacancy or
of a vacancy occurring for a part of the session of the
institution it shall be lawful for the companymittee of
management to appoint a principal headmaster or
teacher if information of such an appointment is
immediately companyveyed to the inspector. the name of the selected candidate shall be
forwarded for approval in the case of a teacher by
the principal or headmaster to the inspector and in
the case of principal or headmaster by the chairman of
the selection companymittee to the regional deputy
director education. a statement showing the names
qualifications and other particulars as may be
prescribed of all candidates who may have applied for
selection shall also be sent along with the name of the
selected candidate. the inspector or regional deputy
director education as the case may be shall give his
decision within two
weeks of the receipt of the relevant papers failing
which approval shall be deemed to have been accorded. where the regional deputy director education
or the inspector as the case may be disapproves for
reasons to be recorded in writing of any name proposed
under sub-section  1  the management may within three
weeks of the receipt of the disapproval make a
representation against it to the director in the case
of a principal or headmaster and to the regional deputy
director education in the case of a teacher and the
decision of the director or the regional deputy
director education as the case may be in the matter
shall be final. where the recommendation made under subsection
 2  has been disapproved and the representation of the
management if any under sub-section  3  has been
rejected the selection companymittee shall proceed to
select and recommend anumberher name for approval as
provided under section 16-e and 16-f. if the selection
so made is again disapproved and the representation if
any against the disapproval has number been accepted the
regional deputy director education in case of a
teacher and the director in the case of a principal or
headmaster may appoint any qualified person out of the
list of the candidates applying for the vacancies and
such appointment shall be final. it is numberdoubt true that the act was amended by u.p. act 26 of 1975 which came into force on august 181975
taking away the power of the director to make an appointment
under section 16-f  4  of the act in the case of minumberity
institutions. the amending act did number however provide
expressly that the amendment in question would apply to
pending proceedings under section 16-f of the act. number do we
find any words in it which by necessary intendment would
affect such pending proceedings. the process of selection
under section 16-f of the act companymencing from the stage of
calling for applications for a post upto the date on which
the director becomes entitled to make a selection under
section 16-f 4   as it stood then  is an integrated one. at
every stage in that process certain rights are created in
favour of one or the other of the candidates. section 16-f
of the act cannumber therefore be companystrued
as merely a procedural provision. it is true that the
legislature may pass laws with retrospective effect subject
to the recognised companystitutional limitations. but it is
equally well settled that numberretrospective effect should be
given to any statutory provision so as to impair or take
away an existing right unless the statute either expressly
or by necessary implication directs that it should have such
retrospective effect. in the instant case admittedly the
proceedings for the selection had companymenced in the year 1973
and after the deputy director had disapproved the
recommendations made by the selection companymittee twice the
director acquired the jurisdiction to make an appointment
from amongst the qualified candidates who had applied for
the vacancy in question. at the instance of the appellant
himself in the earlier writ petition filed by him the high
court had directed the director to exercise that power. although the director in the present case exercised that
power subsequent to august 18 1975 on which date the
amendment came into force it cannumber be said that the
selection made by him was illegal since the amending law had
numberretrospective effect. it did number have any effect on the
proceedings which had companymenced prior to august 18 1975.
such proceedings had to be companytinued in accordance with the
law as it stood at the companymencement of the said proceedings. we do number therefore find any substance in the companytention
of the learned companynsel for the appellant that the law as
amended by the u.p. act 26 of 1975 should have been followed
in the present case. in so far as the second companytention is companycerned it is
to be stated that the act does number state that a person who
had been recommended by a selection companymittee once and whose
selection had been disapproved by the deputy director should
number be companysidered for the post in question by the director
when he exercises his power under sub-section  4  of section
16-f of the act. that provision merely states that in such
an event where the post to be filled up is that of a
principal or a headmaster the director may appoint any
qualified person from amongst the candidates who had applied
for the vacancy and that such appointment shall be final. the respondent number 2 satisfied the requirement of sub-
section  4  of section 16-f of the act. the fact that the
deputy director had disapproved the recommendation of the
selection companymittee recommending him for the post in
question once before cannumber be companystrued as amounting to a
disqualification. it is also to be numbericed
that under section 16-f 4  of the act it is the director who
is authorised to make the appointment of a principal and number
the deputy director.