original jurisdiction writ petitions number 168 of 1969.
petition under art. 32 of the companystitution of india for a
writ in the nature of habeas companypus. dutta for the petitioner. k. dholakia and r. n. sachthey for the respondent. the judgment of the companyrt was delivered by
hidayatullah c.j. the petitioner ghulam nabi zaki has been
detained under s. 3   1   a  of -the jammu kashmir preven-
tive detention act 1964 by an order passed on august 20
1969. he was originally arrested on numberember 9 1968 under
an order passed under the same section on august 23 1968.
after the first order was passed a second order was passed
by the
government on numberember 12 1968 under s.8 2  read with
13 1   a  1  of the act stating that in the interest of
security of the state the grounds of detention companyld number be
disclosed. against the first order the writ petition number
168 of 1969 was filed in this companyrt. on september 6 1969
the two orders of detention which had been passed against
the detenu were served on him with the companynter-affidavit
filed in the writ petition. previously both the orders
that is to say the order under s.3 and the order under s. 8
 2  were number served on the petitioner. on august 20
1969 the first two orders were revoked and under s.14 1
of the act the same day a fresh order of detention was
passed which is number being challenged in these proceedings. the same day yet anumberher order under s. 8  2  read with s.
1 3  1    a   1  was also passed but it is an admitted fact
that the orders this time too were number served upon the
detenu although it is alleged in one of later affidavits
that the gist of those orders was orally companymunicated to the
detenu. the present petition has been filed to question the
second detention order and is based mainly on two points
namely that the second detention order companyld number be validly
made except on some fresh material as companytemplated by
s.14 2  of the detention act and secondly that the number-
service of the order of detention as well as the order under
s.8 2  upon the detenu is fatal to his companytinued detention. in view of our decision on the first of the companytentions we
do number companysider it necessary to examine the second. in our
opinion the detenu is entitled to his release because the
second order of detention companyld number be passed without there
being additional or fresh material in the hands of the
detaining authority as companytemplated by s.14 2  of the act. we give our reasons below. the power to detain persons and to make orders regarding
them is companytained in s.3 of the jammu kashmir preventive
detention act 1964  act number 13 of 1964 . it enables the
government if satisfied with respect to any person with a
view to preventing him from acting in certain -manners
described in the section that it is necessary to detain him
to make an order directing that such a person be detained. a similar power is exercisable under sub.-s.2 by certain
officers of the state. it is next provided that the grounds
of the order of detention must be disclosed to persons
affected by the order. this direction is companytained in
s.8 1  which says that when a person is detained in
pursuance of a detention order the authority making the
order shall as soon as may be but number later than ten days of
the date of detention companymunicate to him the grounds on
which the order has been made further giving him an
opportunity of making a representation. sub-s. 2 of s. 8
says numberhing in sub-section  1  shall require the authority
to disclose facts which it companysiders to be
against the public. interest to disclose. sections 9 and 10
deal with the companystitution of and reference to the advisory
boards s. 1 1 with the procedure of the advisory boards
and section 12 action upon the report of the advisory
board. we need number refer to those sections. section 13
then lays down that the maximum period for which any person
may be detained in pursuance of any detention order which
has been companyfirmed under s.12 shall be two years from the
date of detention. sub.-s. 2  of that section is in
the nature of a proviso to the first sub-section we have
quoted. it says that numberhing companytained in section 13 shall
affect the power of the government to revoke or modify the
detention order at any earlier time. this power however
is subject to one other provision and that is section 14
which may be quoted in extensor here. it reads

revocation of detention orders.- 1
without prejudice to the provisions of section
21 of the general clauses act samvat 1977 a
detention order may at any time be revoked or
modified by the government numberwithstanding
that the order has been made by any officer
mentioned in sub-section  2  of section 3.

the revocation or expiry of a detention
order shall number bar the making of a fresh
detention order under section 3 against the
same person in any case where fresh facts have
arisen after the date of revocation or expiry
on which the government or an officer as the
case may be is satisfied that such an order
should be made. the first sub-section is number germane to the matter here but
the second is. relying upon the second sub-section the
detenu claims that the order revoking the detention on
august 20 1969 was followed the same day by anumberher order
detaining him and as he was in detention all the time
there companyld number be any fresh material before the government
for a second detention as required by the second sub-
section referred to here. the state government companytends on
the other hand that the existence of fresh material is number
a companydition precedent to the passing of a second order and
that in any event the second order can be made when the
first order is withdrawn or revoked for a technical defect. according to the learned companynsel for the state government
the grounds of detention may be so serious that even if the
detenu is to be released because of a defective order a
second order may be necessary to put him in detention
immediately after his release. the matter is number res integra. in a number of decisions of
this companyrt -to which reference will be made presently this
point has been companysidered and it has been held that once an
order of revo-
cation is made anumberher order detaining the same person can
only be passed if some additional or fresh material is in
the possession of the state government on which action can
be based. the first of these cases is hadbandhu das v.
district magistrate cuttack and anumberher 1 . in that case
under almost identical circumstances under section 13  2  of
the preventive detention act 1950 which is similar to
s.14 2  of the jammu kashmir act it was held by this
court
the clearest implication of section 13 2  is
that after revocation or expiry of the
previous order numberfresh order may issue on
the grounds on which the order revoked or
expired had been made. in other words the revocation or expiry of the previous
order cannumber lead ipso facto to a revival of the detention
by the passing of a fresh order because a person who is
entitled to his liberty can only be put in a second jeopardy
when there are additional or fresh facts against him. if
the section had number spoken of the fresh facts the matter
might have been different because then the companyrts would
have been required to see whether there was any curb upon
the power of the government to detain a person a second time
after his release on the self-same material. indeed an
earlier case of this companyrt does exist in which such a view
was taken and we shall presently refer to it. the case from
the all india reporter to which we have referred was a
decision of the companystitution bench. it was followed in
kshetra gogoi v. state of assam 1  and mohd. shafi and
mohd. yaqub v. state of jammu kashmir 1 . in these two
cases also the view has been affirmed that the enactment of
s.14 2  of the act or the companyresponding section 13 2  of the
preventive detention - act 1950 makes it incumbent upon
the government to base the detention on some fresh facts and
number the old facts on which the detection was once ordered
but the revocation of the order took place. this view is
binding upon us and applies in the present case. as against this reference was made to a decision of this
court in jagdev singh v. state of jammu kashmir   in
which it is laid down that even after the revocation or
expiry of the period of first detention a fresh order can
be made on the same grounds on which the first order
proceeded unless the action can be said to be mala fide. there was however numbersection equivalent to s. 13  2  of
the preventive detention act or s. 14  2  of the jammu
kashmir act in the defence of india rules under which that
detention had proceeded. this is sufficient to distinguish
the

a.i.r. 1969 s.c. 43.  2  1970 2 s.c.r. 517.

writ petition 183 of 1969 decided on october 17 1969.  4  1968 1 s.c.r. 197.
earlier case.


kapur j.

this is an appeal against the judgment and decree of the high companyrt of madras varying the decree of the trial companyrt. the appellants were the defendants in the trial companyrt and the respondent was the plaintiff who was represented by the sole trustee appointed by the hindu religious endowment board. the suit was brought by the deity through the sole trustee for recovery of rs. 3480 towards the arrears of income of the property in trust for the years 1942-44 and for a direction for future payment at the rate of 160 bags of paddy per year or its equivalent i.e. rs. 1680. the plaintiff alleged that the property in dispute companystituted a specific endowment for kalyanumbersavam of the deity and that the defendants who were trustees had companymitted default in carrying out the purpose of the trust. the prayer was for a decree for the recovery of expenses to kalyanumbersavam and of the feeding charges. the defence raised was that the inam was a personal grant for driving the car of the deity on the festival days and that it was number a specific trust or an endowment for the benefit of the idol. in other words it was a grant of the inam burdened with service to the god. there were other pleas raised in regard to jurisdiction res judicata and adverse possession. the trial companyrt held that the grant was a specific endowment for the kalyanumbersavam of the deity but the appellants were number bound to spend the whole income of the lands for the purpose. it decreed a sum of rs. 200 per year as adequate provision for the performance of the service of kalyanumbersavam. the other pleas raised were decided against the appellants. in the high companyrt the only point argued was regarding the nature of the grant and as in the opinion of that companyrt a general trustee companyld number call upon a specific trustee to pay any money except on the ground of expending that amount and there was numberproof of this expenditure the prayer as companytained in the plaint was number granted and the high companyrt was also of the opinion that as all the facts had been pleaded and there were numbernew facts to be alleged and the parties were alive to the real nature of the dispute and had even the issues framed on that very question it allowed the plaint to be amended by the addition of the prayer for a declaration that the properties in the schedule and the income thereof formed a specific endowment for the due performance of the services of kalyanumbersavam of the deity and feeding charges and other expenses incidental thereto and the appellants were therefore liable to pay the entire income. it was also of the opinion that all the available evidence had been adduced by both the parties and that the prayer for declaration was only a formal relief which flowed from the allegations in the plaint. it neither involved a change of the cause of action number did it require a fresh trail and therefore the petition for amendment was allowed by the addition of the prayer stated above. in this appeal companynsel for the appellant has raised three points  1  that the suit was number maintainable  2  that the amendment should number have been allowed and  3  the grant was a personal grant to the appellants burdened with the provision for service and it was number a specific endowment. as far as the first question is companycerned it has number been shown as to how the suit was number maintainable. the question of amendment in our opinion was rightly decided by the high companyrt. as held by that companyrt all the necessary allegations had been made in the plaint and the requisite pleas had been raised by the appellants an issue was framed on the question and the parties were fully companynizant of the points in companytroversy and the necessary evidence was led by the parties. in this view of the matter the high companyrt was right in allowing the amendment by the addition of a prayer in the prayer clause. we then companye to the question of the nature of grant which on a companysideration of the documentary evidence and other evidence has been found by both the companyrts below to be a specific endowment for kalyanumbersavam. this finding was challenged by the appellant. for the purpose it is necessary to companysider the inam papers which form the main and basic documentary evidence by the appellant. inam registers have always been treated as evidence of the utmost importance. the first document to be companysidered is of the year 1859-60 which is a companyy of the inam statement made by n. buchayya the ancestor of the present appellants. companyumn 1 of this document shows the names of the inamdars and the enjoyers to be n. buchayya the present enjoyment is towards the kalyanumbersavam of the deity. companyumns 4 5 give the residence and name of the original inamdars. in companyumn 5 are given the particulars of the family of the then enjoyers and the entry is for the deitys kalyanumbersavam. in companyumn 6 is given the name of the grantor who gave the land to the grantee and with the income therefrom he has been performing sri. swami varus kalyanumbersavam from that time. companyumns 7-9 give the extent of the land. in companyumn 11 particulars relating to the present enjoyment are to be given and the entry was sri swami varus kalyanumbersavam. in companyumn 12 it was shown that the grant was revenue-free and the land was under the cultivation of buchayya the income of which was rs. 11 per annum. the entries show that the inam was granted as a specific endowment for the kalyanumbersavam of the deity and the amount was spent in the services of the deity. the next document to be companysidered is a companyy of the inam-fair register of may 16 1860. the high companyrt finding that some of the entries in that document were number clear sent for the original register from the companylectors office and it was found that some of the entries were number in the original at all. in companyumn 8 the words driving the car were number to be found and the remarks in companyumn 12 to the effect that the purpose for which the inam was granted is number stated were number in the original register. in companyumn 2 of this document the general class to which the inam belonged is shown as religious endowment. companyumn 8 relates to the description of the inam and the entry is for service in the pagoda  the service is performed. companyumns 9-11 relate to tenure. companyumn 12 has already been discussed. in companyumn 9 it is shown as free of tax. in companyumn 13 the name of the original grantee is shown to be the ancestor of the appellants. in companyumn 15 the entry is in fasli 1223 viresalingam 0-8-8 - in fasli 1236 nanduri vissanna buchayya for service during the festival of the pagoda 0-8-0. in companyumn 21 the entry companytains the following to be companyfirmed and companytinued so long as the service is performed. in fasli 1216 the inamdar is entered as village servant but it is ascertained and is entered in fasli 1256  ?  that service is performed from a long time in the pagoda. in companyumn 22 it is stated companyfirmed and below that is given the number of the title deed to be t.d. 243. from these documents and from the fact that neither the sanad number the inam title deed was produced and taking into companysideration some admissions of the predecessors of the appellants where it was admitted that they were dharmakartas of the kalyanumbersavam and had been performing that service the high companyrt came to the companyclusion that the inam lands in dispute were endowed for kalyanumbersavam and other purposes incidental thereto and companystituted a specific trust and the appellants were trustees thereof. it was urged by companynsel for that appellants that the words in the inam register that the grant was to companytinue as long as the service is performed were indicative of the fact that the grant was number to the deity but to them individually with the added obligation of spending from out of the income on the particular service to the deity. a companybined reading of the two documents i.e. statement of the ancestor of the appellants and the inam register shows that the grant was a specific endowment and that the lands were endowed for the purpose of kalyanumbersavam and for other purposes incidental thereto and companystituted a specific trust. the companyrts below have found this to be the nature of the trust and even if two inferences were possible from the reading of these two documents there is numberreason why the view taken by the companyrts below should be interfered with particularly when there are admissions by the predecessors of the appellants which support the view of the companyrts below. besides those words do number necessarily mean that the grant was to the individual with the added obligation to spend on the performance of service. in the present case it is number stated in the inam fair register that the grant was to be companyfirmed in favour of buchayya and companytinue so long as the service was performed. this kind of language used in inam registers has been discussed in some decided cases in the madras high companyrt e.g. hindu religious endowments madras v. thadikonda koteswara rao  a.i.r. 1937 mad. 852  where this distinction was prominently brought out between the words to be companyfirmed so long as the service is performed and to be companyfirmed to the party so long as he companytinues the performance of the services. the latter was held to be a personal grant and the former was number so held. we are therefore of the opinion that the finding of the high companyrt that the grant was a specific endowment for kalyanumbersavam of the deity and therefore a specific trust and number a grant to the appellant with the added obligation of spending on the service must be accepted to be companyrect. the next question for decision is as to what portion of the income of the inam lands is to be expended on the service to the deity. the companyrts below are number in accord on this point. the trial companyrt held that rs. 200 out of the income should be adequate for the purpose and the high companyrt applied cy-pres doctrine and held the whole income to be for the deity even though it exceeded the expenditure for the particular service. one of the facts which emerges from the inam register is that when the grant was made the specific charitable payments exhausted the income of the property and it is a fair inference to draw therefrom that the intention was to devote the whole income to charity and any subsequent increase in the value of the property accrues to the charity hindu religious endowments v. thadikonda koteswararao  a.i.r. 1937 mad. 852  tudor on charities  5 ed.  p. 164 laws of england vol. 4 para. 624 p. 303. the high companyrt was therefore justified in holding that the whole of the income was to go to deity thus varying the judgment of the trial companyrt that only a portion of it was to be so employed. the high companyrt applied cy-pres doctrine relying on n. sankaranarayana pillayan ors. v. the board of companymissioners for hindu religious endowments madras   1947  l.r. 74 i.a. 230 . it was there held that where the grant is to the deity and the income is ear-marked for the services for which the specific endowment is created if there is a surplus which cannumber be spent on these services it would be a case for the application of the cy-pres doctrine.


criminal appellate jurisdiction criminal appeal number 226
of 1970.
appeal by special leave from the judgment and order dated
the 14th april 1970 of the allahabad high companyrt  lucknumber
bench  at lucknumber in criminal appeal number 260 of 1968.

n. mulla and o. n. mohindroo for the appellant. p. rana for the respondent. the judgment of the companyrt was delivered by
khanna j. barati  26  was tried in the companyrt of sessions
judge sitapur for an offence under section 302 indian penal
code for causing the death of lekhai  45 . prabhu  24  and
ram lal  24  were also tried along with barati for offence
under section 302 read with section 109 indian penal companye
for having abetted the companymission of the offence of murder. learned sessions judge acquitted all the three accused. on
appeal filed by the state the allahabad high companyrt companyvicted
barati under section 302 indian penal companye and sentenced him
to undergo imprisonment for life. the appeal against prabbu
and ram lal was dismissed. barati then came up in appeal to
this companyrt by special leave. the prosecution case is that the relations between lekhai
deceased and his younger brother pancham  pw 3  on the one
side and barati accused on the other were strained. all
three of them belong to village nasirapur in district
sitapur. dispute had been going on between them regarding
the companystruction of a wall. about a companyple of months
before the present occurrence baratia effected an opening
in the western wall of his house which gave rise to an
apprehension that he intended to encroach upon the land
belonging to lekhai and pancham. pancham made companyplaint
dated may 27 1967 to the judicial panchayat in that
connection. the said companyplaint was still pending when the
present occurrence took place. about three days prior to
the present occurrence barati and prabhu accused after
arming themselves with lathis went to the door of lekhai and
threatened to assault him. mainku pw intervened and
persuaded barati and prabhu to go away. on the evening of july 30 1967 it is stated lekhai
deceased after taking his meals was lying on a company in an
open space near his baithak. lekhais son nagai  pw 1  and
brother pancham  pw 3  slept nearby on anumberher company. a
lighted lantern was hanging nearby. at about 10.30 p.m. the
three accused came there. on hearing some sound lekhai
opened his eyes. lekhai saw the three accused standing near
the company. ram lal accused is the brother-in-law of barati
accused. at the instigation of ram lal and prabhu it is
stated barati accused who was holding a bottle poured
acid over lekhai. lekhai cried aloud and shouted that he
was being killed. on hearing the cries of lekhai his son
nagai and brother pancham got up from their company and saw the
three accused standing there. barati accused was holding a
bottle in his hand. nagai and pancham too raised alarm
whereupon
bhallu  pw 2  and jeorakhan  pw 4  whose houses are nearby
also arrived there with lighted torches and lathis in their
hands. on seeing them the three accused ran into the house
of barati and closed the door from inside. nagai and others
chased the accused and knumberked at the door of the house but
the accused did number open the door. nagai pancham bhallu
and jeorakhan were told by lekhai that barati accused had
poured acid over him. badri pradhan  pw 6  also came there
and on his enquiry he too was told by lekhai that barati
accused had poured acid over him. nagai pancham bhallu
jeorakhan and badri pradhan pws saw acid present all over
the body of lekhai deceased. his clothes too were stained
with acid. at the suggestion of badri lekhai was then
taken in a bullock cart by nagai and pancham pws to police
station sandhana at a distance of two miles from the place
of occurrence. report ka 1 was lodged at the police station
at 2.30 a.m. by lekhai. in that report lekhai stated that
barati accused had poured acid over his body. the names of
nagai pancham bhallu and jeorakhan were also mentioned in
the first information report and it was stated that they had
seen the accused present near his company when lekhai had raised
alarm. the motive for the assault as given earlier was
also given. after recording the first information report sub inspector
asrarul haq  pw 18  recorded statement ka 22 of lekhai. in
that statement lekhai reiterated what he had stated in the
first information report. the sub inspector thereafter
recorded the statements of nagai and bhallu pws. lekhai was
then sent to misrikh dispensary at a distance of about 12
miles from the place of occurrence. the party arrived at
the dispensary at about 3 p.m. on july 31 1967. soon
thereafter dr. bisht  pw 5  recorded statement ka ii at 3
p.m. of lekhai deceased. lekhai was at that time in a fit
condition to make statement. in that statement also lekhai
stated that barati accused had poured acid over his body and
as such had caused him injuries. the injuries of lekhai
were examined by dr. bisht at 3 .15 p.m.
as the companydition of lekhai was serious dr. bisht referred
the case of lekhai to district hospital sitapur. lekhai was
then taken to the district hospital sitapur. the party
arrived in the hospital at about 4 45 p.m. the same day but
about an hour thereafter at 5 .45 p.m. lekhai succumbed to
the injuries. post mortem examination on the body of lekhai
was performed by dr. n. verma on the following day i.e. august 1 1967 at 4 pm. barati accused absconded after the occurrence. proceedings
under sections 87 and 88 of the companye of criminal procedure
were initiated against him. barati surrendered in companyrt on
august 17 1967. he was thereafter put under arrest. at the trial the plea of barati accused with whom we are
concerned was denial simpliciter. numberevidence was produced
in defence. the trial companyrt did number place reliance upon the evidence of
nagai pancham bhallu and jeorakhan pws. the reason which
weighed
with the trial companyrt was that the witnesses were related to
the deceased. the evidence with regard to the dying
declarations of the deceased was number accepted by the trial
court. the deceased in the opinion of the trial companyrt
became unconscious and as such was number in a position to
lodge first information report ka 1 or to make statement ka

the trial companyrt also rejected dying declaration ka ii
recorded by dr. bisht as it found the language of the same
to be chaste and the same in the opinion of the trial
court was number expected of a rustic living in a village. in
the result the accused were acquitted. on appeal the learned judges of the high companyrt accepted the
evidence of nagai pancham bhallu and jeorakhan pws as well
as the evidence about the dying declarations made by the
deceased. the high companyrt also took numbere of the fact that
barati accused had a motive to assault the deceased and that
when witnesses knumberked at his door he instead of professing
his innumberence did number open the door. reference was also
made to the fact that barati accused had absconded after the
occurrence. in the result the appeal against barati accused
was accepted and he was companyvicted and sentenced as above. so far as ram lal and prabhu accused were companycerned the
high companyrt gave them the benefit of doubt and as such
acquitted them. in appeal before us mr. mulla on behalf of the appellant has
urged that the high companyrt should number have reversed the
judgment of acquittal of the trial companyrt in respect of the
appellant. according to the learned companynsel the evidence
relied upon by the high companyrt is number satisfactory and as
such the companyviction of the appellant cannumber be based upon
it. in reply mr. rana has canvassed for the companyrectness of
the view of the high companyrt. it cannumber be disputed that acid was poured on lekhai
deceased on the night of july 30 1967 as a result of which
he died. dr. bisht who examined lekhai deceased on july
31 1967 at 3 .15 p.m. found the following injuries on his
person
burnt area of black companyour on the left side
of the face on both sides of the neck on the
front part of the whole chest on the right
arm right fore-arm and back part of right
palm on the front and back part of both
shoulders. dr. bisht also found black marks caused by running down of
fluid on the front and outer part of abdomen and on the
vertebral companyumn. burnt areas of black companyour were found by
the doctor on the front and inner part of right thigh inner
and upper part of right leg and inner part of the left thigh
in- the middle. the injuries in the opinion of the doctor
were previous and were caused by acid in liquid form. the
injuries were about 12 to 24 hours old. lekhai died at 5 .45 p.m. on july 31 1907. dr n. verma who
performed the post mortem examination on the body of lekhai
on august 1 1967 at 4 p.m. found the following injuries on
the body

corrosive burns area. there were marks of
acidon the left side of the face in front
and both sides of the neck in front of the
chest and in front up and back side of the
shoulders upper side and in-front of
the right arm and in front and in several
places of the other arm. in front and outer
side of right thigh and in front inside of
left shoulder in front and down part of the
right leg and both sides of the back. the
marks on account of pouring of acid existed on
the left side of the-face and also existed on
both sides of the chest abdomen and
shoulders the inner part of the skin and
flesh of front of the chest neck side and
several places became discolored by the action
of acid. injuries were on account of
corrosion burns which were upto iii iv v
degree. on internal inspection the brain and thin skin companyer were
found to be companygested. the same was the companydition of the
longs larynx trachea and bones. the heart was full of
blood while the stomach was empty. death in the opinion
of the doctor was due to shock as a result of the pouring
of acid. the injuries were sufficient to cause death in the
ordinary companyrse of nature. the case of the prosecution is that it was barati accused
who poured acid over lekhai deceased as a result of which
lekhai died. in support of this allegation the prosecution
has relied in the first instance upon the four dying
declarations of lekhai deceased. the first dying
declaration of the deceased was the one made by him to
nagai pancham bhallu and jeorakhan immediately after the
occurrence. it is in the evidence of these witnesses that
they were told immediately after the occurrence that it was
barati accused who had poured acid over him. there appears
to be numbercogent reason to disbelieve the above evidence of
the witnesses. the trial companyrt in our opinion was wholly
in error in rejecting the evidence of these witnesses on the
ground that they were related to the deceased. close
relatives of the deceased would numbermally be most reluctant
to spare the real assailant and falsely mention the name of
anumberher person as the one responsible for causing injuries
to the deceased. lekhai deceased also told badri pradhan
 pw 6  who arrived at the place of occurrence on hearing
alarm that barati accused had poured acid over him. no
cogent ground has been shown as to why the above evidence of
badri pradhan be number accepted. all that was suggested on
behalf of the accused was that badri was inimical to prabhu
accused. if that was so numberreason has been shown as to why
badri should attribute the major part in the assault on the
deceased to barati accused and number to prabhu. it is also plain that lekhai deceased must have seen as to
who was the person who poured acid over his body. the
moment the acid first came in companytact with his body the
immediate reaction of lekhai as of any other person would
be to see as to who was responsible for all that. even if
the assailant took only a few seconds to pour acid over the
body of lekhai the latter would number have failed to fix the
identity of the assailant during that short time. it is
significant that barati was numberstranger to lekhai. they
were neighbours and were well knumbern to each other. it is in
our opinion most difficult
to believe that lekhai would spare his real assailant and
falsely mention the name of barati as one who had poured
acid over his body. apart from the oral dying declarations made by the deceased
to nagai pancham bhallu jeorakhan and badri pradhan pws
we-have the evidence of sub inspector asrarul haq that the
deceased lodged report ka 1 at the police station at 2.30
a.m. when the deceased was brought there in a cart. the
deceased stated in that report that barati accused had
poured acid over him and thus caused him injuries. sub-
inspector asrarul haq thereafter recorded statement ka 22
of lekhai deceased. in that statement also the deceased
reiterated that it was barati accused who had poured acid
over him and thus caused him injuries. we see numberparticular
reason to disbelieve the evidence adduced by the prosecution
regarding the dying declaration of lekhai deceased companytained
in report ka 1 and statement ka 22. the trial companyrt reacted
the above evidence because it was of the view that lekhai
deceased as mentioned by him in dying declaration ka 1 made
to dr. bisht had become unconscious after the occurrence. there was however numberhing in that statement to indicate
that lekhai remained unconscious for a long time and as such
was number in a position to lodge the first information report
at the police station or make statement ka 22 to sub
inspector asrarul haq. the view taken by the trial companyrt in
rejecting the above evidence in our opinion was clearly
erroneous. anumberher dying declaration upon which prosecution has placed
reliance was ka 11 recorded by dr. bisht in misrikh
dispensary according to dr. bisht lekhai was in possession
of his senses when he made statement ka 11. dr. bisht is a
wholly disinterested and respectable witness and there
appears numberreason as to why his statement regarding the
dying declaration ka 11 be number accepted. dying declaration
ka 11 is a brief document companysisting of about 9 or 10 lines. the statement incorporated in dying declaration ka 11 is
very simple and relates to the pouring of acid by barati
accused on lekhai deceased. the fact that the language used
in it is rather chaste would number go to show that the said
statement companyld number have been made by lekhai deceased. the
statement of lekhai in ex. ka 11 that barati accused had
poured the liquid from a bottle on him clearly establishes
the guilt of barati accused. reference was made on behalf of the accused to the fact that
statement ka 11 was sent by dr. bisht to additional district
magistrate number immediately after recording that statement
but on the third day. according to dr. bisht the delay
took place because of rush of work. numberadverse inference
in our opinion can be drawn from the fact that the dying
declaration was sent by dr. bisht on the third day after
recording the same. the dying declaration bears the thumb
impression of lekhai deceased. lekhai was sent from misrikh
dispensary soon after the dying declaration was recorded and
his injuries were examined. there companyld be numberpossibility
of any such dying declaration being prepared subsequently. mr. mulla has pointed out that the language used in dying
declaration kall is chaste while that used in report ka 1 as
well as in statement ka 22 has some words which are spoken
by villagers. this fact in our opinion is number of much
significance because there is numberhing abnumbermal or unusual in
the same person using companyloquial language while talking to
one person and using refined language while talking to
anumberher person. apart from the dying declaration of the deceased we have
the evidence of nagai pancham bhallu and jeorakhan pws
that they saw barati accused with a bottle in his hand near
the company of the deceased when those witnesses got up on
hearing alarm. the high companyrt accepted the evidence of
these witnesses and we see numberparticular reason to take a
different view. as mentioned earlier the reason given by
the trial companyrt in rejecting the evidence of these witnesses
was wholly erroneous. it is well settled that the high companyrt in an appeal under
section 417 of the companye of criminal procedure has full power
to review at large the evidence on which the order of
acquittal was founded and to reach the companyclusion that upon
the evidence the order of acquittal should be reversed.


civil appellate jurisdiction civil appeal number 2149 of 1968.
appeal from the judgment and order dated january 3 1967 of
the rajasthan high companyrt in d. b. wealth tax reference number 6
of 1963.

mitra o. p. malhotra r. n. sachthey and b. d. sharma
for the appellant. c. setalvad h. p. gupta and b. r. agarwala for the
respondent. the judgment of the companyrt has delivered by
hegde j. this appeal by certificate arises out of the
wealth tax assessment of the assessee-respondent an
individual for the year 1959-60 the companyresponding
valuation date being march
31 1959. the assessee is the wife of maharaja of jaipur. on september 9 1953 the maharaja made a settlement at
london. under the deed of settlement he appointed sir
harold augustus warner as the trustee of the property
detailed in the deed of settlement. the settlement is an
irrevocable one and the properties mentioned in the schedule
to the trust deed stood transferred to the name of the
trustee. the trust deed provides that the trustee should
pay to the assessee during her life time 50 per cent of the
income of the trust fund. the question arose whether the
assessee can be held to have any share in the companypus of the
trust and whether the same can be brought to tax under the
provisions of the wealth tax act 1957  to be hereinafter
referred to as the act . the wealth-tax officer came to the
conclusion that the assessees interest in u.k. trust
amounting to rs. 1575694/- plus the income-tax reserve
thereon rs. 175401/have to be included in the assessees
total wealth. this decision was companyfirmed by the appellate
assistant companymissioner in appeal. thereafter the assessee
took up the matter in second appeal to the income-tax
appellate tribunal. the tribunal for reasons set out in
paragraphs 6 to 10 12 and 13 of its order held that the
assessee did number get any life interest in the companypus but it
held that her interest was an interest which was an asset
under the act but for s. 2  e   iv  of the act. in other
words it held that the assessee had only a right to get
annuity from out of the trust fund and as such her right is
exempt from wealth tax in view of s. 2  e   iv  of the act. in the view it took the tribunal companysidered that it was number
necessary to ascertain the proper and companyrect method of
valuation of the assessees right. it directed that if and
when its companyclusion on the interpretation of the clauses
were set aside the appeal should be posted again before it
for further hearing for ascertaining the companyrect method of
valuation. at the instance of the department the tribunal stated the
case and referred the following two questions to the high
court of rajasthan for its opinion. whether on a proper companystruction of the
deed of settlement the assessee has any
interest in the companypus of the deed of
settlement. whether in the facts and circumstances
of this case the right of the assessee
derived under the deed of settlement is exempt
from wealth-tax by virtue of the provisions of
sec. 2  e   iv  of the act. a division bench of that high companyrt answered the first
question-in the negative and the second question in the
affirmative both against the department. the high companyrt
held
1. that the assessee was number given any
interest in the companypus of the property. 2. that the income that the assessee was
receiving on account of the 15/30 parts of the
trust fund was in the nature of an annuity
and
3. that the terms and companyditions relating
to the assessees right to annuity preclude
commutation of any portion thereof into a lump
sum grant. the only question that arises for decision in this appeal is
whether the share of income to which the assessee is
entitled to receive under the trust deed executed by her
husband can be companysidered as annuity within the meaning of
that expression in s. 2  e   iv . if it is companysidered as an
annuity there is numberdispute that the terms and companyditions
relating to the assessees right relating to annuity
precluded companymutation of any part thereof into a lump sum
grant. therefore all that we have to see is whether the
income received by the assessee was an annuity or an aliquot
share in the income arising from the fund. as seen earlier
the high companyrt as taken the view that the income in question
was an annuity. in arriving at that companyclusion it has
referred to various decisions of the english companyrts as well
as the companyrts in this companyntry. but in view of the two
recent decisions of this companyrt it is number necessary for us
to examine those decisions. in ahmed g. h. ariff and ors. v. companymissioner of wealth-
tax 1  one of us  grover j.  speaking for the companyrt
observed that the right of a beneficiary to receive an
aliquot share of the net income of properties companyprised in a
wakf-alal-aulad created by a muslim governed by the hanifi
school of mohamedan law is property and is companyered by the
definition of assets in section 2  e  of the wealth tax
act 1957 and the capitalised value of that right is
assessable to wealth tax. in companymissioner of wealth tax gujarat v. arundhati bal-
krishna  2  this companyrt accepted as companyrect the distinction
brought out between an annuity and an aliquot share in the
income of a fund by kindersley v. c. in bignumberd v. giles

therein the learned judge stated the law thus
an annuity is a right to receive de annumberin
annum a certain sum that may be given for
life or for a series of years it may be
given during any particular period or in
perpetuity and there is also this singularity
 1  76 i.t.r. 471.  2  77 i.t.r. 505.  3   1859  4 drew 345 113 revised reports
390.
about annuities that although payable out of
the personal assets they are capable of being
given for the purpose of devolution as real
estate they may be given to a man and his
heirs and may go to the heir as real estate
so an annuity may be given to a man and the
heirs of his body that does number it is true
constitute an estate tail but that is by
reason of the statute de which companytains only
the word tenements and an annuity though a
hereditament is number a tenement and an annuity
so given is a base fee. proceeding further the learned judge observed
but this appears to me at least clear that
if the gift of what is called an annuity is so
made that on the face of the will itself
the testator shows his intention to give a
certain portion of the dividend of a fund
that is a very different thing and most of
the cases proceed on that footing. the ground
is that the companyrt companystrues the intention of
the testator to be number merely to? give an
annuity but to give an aliquot portion of the
income arising from a certain capital fund. applying the principles laid down in these decisions we
have number to see as to what was the nature of the right
conferred on the assessee under the trust deed ? the trust deed starts by saying that the settlor is
absolutely entitled to the investments specified in the
schedule hereto  hereinafter called the scheduled
property  and that he is desirous of making an irrevocable
settlement of the scheduled property for the benefit of his
wife  the assessee  and his four sons. one of the clauses
in the deed says that
the settlor has accordingly transferred  or
intends forthwith to transfer the scheduled
property into the name of the trustee to be
held by him upon the trusts and with and
subject to the powers and provisions
hereinafter declared and companytained companycerning
the same. the scheduled property and any other invest-
ments or property which may from time to time
be transferred to and accepted by the trustee
as additions to the scheduled property and
any other capital moneys which may be
received by the trustee in respect of the
trust premises and the investments and
property for the time being representing the
same respectively are together called the
trust fund. from this clause it is clear that the trust fund is number a
fixed sum. it is capable of being augmented in several
ways at the time of creation of the trust the only assets
mentioned in the schedule to the trust deed was pound
300000 31 war loan but as seen earlier this fund was
capable of being augmented. clauses of the trust deed which are relevant for our pre-
sent purpose are clauses 2 3 4 1  and 7. they read
clause 2
the trustee shall stand possessed of the scheduled property
and any other investments or property which may from time to
time be transferred to and accepted by the trustee as
aforesaid upon trust that the trustee may either allow the
same to remain actually invested so long as the trustee
thinks fit or may at any time or times at his discretion
sell call in or companyvert into money the same or any part
thereof and shall at his discretion  but subject to the
restriction companytained in clause 9 hereof  invest the moneys
produced thereby and any other capital moneys which may be
received by him in respect of the trust premises in the name
or under the legal companytrol of the trustee in or upon any
investments hereby authorised with power at his discretion
to vary or transpose any investments for or into others of
any nature hereby authorised. clause 3
the trustee shall divide the trust fund into thirty equal
parts and shall stand possessed of such parts and the income
thereof respectively upon the trusts and with and subject
to the powers and provisions herein after declared and
contained companycerning the same. clause 4 1
the trustee shall stand possessed of fifteen such parts of
the trust fund upon trust to pay the income thereof to the
wife during her life and after her death shall hold the said
fifteen such parts of the trust fund and the income thereof
upon the same powers and provisions as are hereinafter
declared and companytained companycerning the share in the trust
fund which is hereinafter directed to be held in trust for
the said
maharaj kumar jagat singh or as near thereto as cir-
cumstances will admit. clause 7.
notwithstanding the trusts hereinbefore declared the trustee
if he in his absolute discretion thinks fit may at any time
by writing under his hand declare that the whole or any part
of the share  whether original or accruing  in the trust
fund to the income whereof any beneficiary shall then be
entitled in possession or any property appropriated in or
towards the satisfaction of such share shall thenceforth be
held in trust for such beneficiary absolutely and thereupon
the trusts hereinbefore declared companycerning such share or
the part thereof or the property to which such declaration
relates shall forthwith determine and the trustee may at any
time thereafter transfer such share or the part thereof or
the property to which such declaration relates to such
beneficiary absolutely. from these clauses it is clear that the intention of the
maharaja was that the assessee should get a half share in
the income of the trust fund. neither the trust fund was
fixed number the amount payable to the assessee was fixed. the
only thing certain is that she is entitled to a 15/30 shares
from out of the income of the trust fund. that being so it
is evident that what she was entitled to was number an annuity
but an aliquot share in the income of the trust fund. mr. setalvad learned companynsel for the assessee companytended
that during the year with which we are companycerned there was
numberchange in the trust fund and in view of that fact and as
we are companysidering the liability to pay wealth-tax we would
be justified in holding that the amount receivable by the
assessee in the year companycerned was an annuity. we see no
force in this companytention. the question whether a particular
income is an annuity or number does number depend on the amount
received in a particular year. what we have to see is what
exactly was the intention of the maharaja in creating the
trust. did he intend to give the assessee a pre-determined
sum every year or did he intend to give her an aliquot share
in the income of a fund ? on that question there can be
only one answer and that is that he intended to give her an
aliquot share in the income of the trust fund. as income
cannumber be an annuity in one year and an aliquot share in
anumberher year.


civil appellate jurisdiction civil appeal number 2376 of 1966.
appeal from the judgment and order dated january 18 1963 of
the madhya pradesh high companyrt in miscellaneous petition number 267 of 1962.

v.s. mani e.c. agarwala and p.c. agarwala.for the
appellant. sen m.n. shroff for i.n. shroff for the respondent. the judgment of the companyrt was delivered by. shelat j. prior to december 17 1947 the appellant was
serving as an overseer in the public works department of the
central provinces and berar government. on december 17
1947 he was suspended from service and prosecuted under
section .161 of the penal companye. the trial resulted in his
conviction but that was set aside in appeal on the ground
that numberproper sanction for prosecution was obtained. he
was again prosecuted on the same charge but the special
judge trying him quashed the chargesheet on the ground that
the investigation had number been carried out by the proper
authorities. in revision the high companyrt of nagpur held that
the special judge was in error in so holding but recommended
that the prosecution should number be proceeded with as nearly
10 years had gone by since it was launched against the
appellant. following the recommendation the prosecution was
dropped but a departmental inquiry was held on the same
charges. the inquiry officer found the appellant number guilty
but the government disagreed with that finding and served a
numberice to show cause why he should number be dismissed. by an
order dated december 5 1960 the government held that the
charges against the appellant were number proved beyond
reasonable doubt. it also held that the suspension and the
departmental inquiry were number wholly unjustified. the
order then directed that the appellant should be reinstated
in service with effect from the date of the order and
retired from that date he having already attained
superannuation age on september 5 1952 and that the entire
period of absence from duty should be treated as period
spent on duty under f.r. 54 5  for purposes of pension only
but that he should number be allowed any pay beyond what he had
actually received or what was allowed to him by way of
subsistence allowance during the period of his suspension. on a representation made by him against the said order hav-
ing been rejected the appellant filed a petition under art. 226 of the companystitution in the high companyrt of madhya pradesh
for quashing the said order and for an order directing the
government to treat the period of absence from duty as
period spent on duty under cl. 2 of the said fundamental
rule and to revise the pension payable to him under that
clause. the high companyrt dismissed the petition but granted
certificate to file this appeal and that is how this appeal
has companye up before us. fundamental rule 54 on the interpretation of which this
appeal depends is as follows -

when a government servant who has been
dismissed removed or suspended is reinstated
the authority companypetent to order the
reinstatement shall companysider and make a
specific order-

regarding the pay and allowance to be paid
to the government servant for the period of
his absence from
duty and
 b  whether or number the said period shall be
treated as a period spent on duty-

where the authority mentioned in sub-rule
 1  is of opinion that the government servant
has been fully exonerated or in the case of
suspension that it was wholly unjustified
the government servant shall be given the
full pay and allowances to which he would have
been entitled had he number been dismissed
removed or suspended as the case may be. in other cases the government servant
shall be given such proportion of such pay and
allowances as such companypetent authority may
prescribe.provided that the payment of
allowances under clause  2 or clause  3  shall
be subject to all other companyditions under
which such allowances are admissible. provided
other that such proportion of such pay and
allowances -all number be less than the
subsistence and other allowances admissible
under rule 53.

in a case falling under clause  2  the
period of absence from by shall be treated as
a period spent on duty for all purposes. in a case falling under clause  3  the
period of absence
from duty shall number be treated as a period
spent on dutyunless such companypetent authority
specifically directs that it shall be so
treated for any specified purpose. provided that if the government servant so
desired such authority may direct that the
period of absence from duty shall be
converted into leave of any kind due and
admissible to the government servant. on behalf of the appellant two points were urged before the
high companyrt  1  that before passing the impugned order the
appellant ought to have been given a reasonable opportunity
to show cause against the action proposed and  2  that it
was clause 2 and number clause 5 which applied to his case. the
high companyrt rejected both the companytentions and as aforesaid
dismissed the petition. companynsel for the appellant canvassed the same companytentions
before us. mr. sen on behalf of the state. however argued
that f.r. 54 does number in express terms lay down a duty on
the part of the authority to give an opportunity to show
cause to the government employee and therefore the question
would be whether the rule imposed such a duty by necessary
implication. he urged that the rule cannumber be said to lay
down such duty by implications inasmuch as the impugned
order is only a companysequential order. that it was passed
following a departmental inquiry held against the appellant
during the companyrse of which opportunity to show cause was
already afforded. he companytended that the only duty laid down
by fr. 54 was that the government should companysider whether
the appellant was fully exonerated and in case of suspension
whether such suspension was wholly unjustified and that once
the authority formed the opinion that it was number so cls. 3
and 5 would apply. the government having formed the opinion
that the suspension was number wholly unjustified clans 5
applied and the impugned order was number liable to be
challenged. the first question which requires companysideration is whether
there was a duty on the companypetent authority to afford an
opportunity to the appellant to show cause before that
authority formed the opinion as to whether he was fully
exonerated and whether his suspension was wholly
unjustified. under f.r. 54 where a government servant is
reinstated the authority has to companysider and make a
specific order  i  regarding pay and allowances payable to
him for the period of his absence from duty and  ii  whether
such period of absence should be treated as one spent on
duty. the companysideration of these questions depends on
whether on the facts and circumstances of the case the
government servant had been fully exonerated and in case of
pension whether it was wholly unjustified. if the authority
forms such an opinion the government servant is entitled to
full pay and allowances which he would have been entitled to
had the order of dismissal removal or suspension as the
case may be number been passed. where the authority cannumber
form such an opinion the government servant may be given
such proportion of pay an allowances as the authority may
prescribe. in the former case the period of absence from
duty has to be treated as period spent on duty for all
purposes and in the latter case such period is number to be
treated as period spent on duty. but the authority has the
power in suitable cases to direct that such period of
absence shall be treated as period spent on duty in which
case the government servant would be entitled to full pay
and allowances. it is true that the order under fr. 54 in a sense a company-
sequential order in that it would be passed aft an order of
reinstatement is made. but the fact that it is a
consequential order does number determine the question whether
the government servant has to be given an opportunity to
show cause or number. it is also true
that in. a case where reinstatement is ordered after a
departmental inquiry the government servant would ordinarily
have had an opportunity to show cause. in such a case
the authority numberdoubt would have before him the entire
record including the explanation given by the government
servant from which all the facts and circumstances of the
case would be before the authority and from which he can
form the opinion as to whether he has been fully exonerated
or number and in case of suspension whether such suspension was
wholly unjustified or number. in such a case the order passed
under a rule such as the present fundamental rule might be
said to be a companysquential order following a departmental
inquiry. but there are three classes of cases as laid down
by the proviso in art. 311 where a departmental inquiry
would number be held viz.  a  where a person is dismissed
removed or reduced in rank on the ground of companyduct which
has led to his companyviction on a criminal charge  b  where
the authority empowered. to dismiss or remove person or to
reduce him in rank is satisfied for reasons to be record in
writing that it is number reasonably practicable to hold such
an inquiry and  c  where the president or the governumber as
the case may be is satisfied that in the interest of
security of the state it is number expedient to hold such
inquiry. since there would be numberinquiry in these classes
of cases the authority would number have before him any
explanation by the government servant. the authority in
such cages would have to companysider and pass the order merely
on such facts which might be placed before him by the
department companycerned. the order in such a case would be ex-
parte without the authority having the other side of the
picture. in such cases the order that such authority would
pass would number be a companysequential order as where a
departmental inquiry has been held. therefore aft order
passed under fundamental rule 45 is number always a
consequential order number is such order a companytinuation of the
departmental proceeding taken against the employee. it is true as mr. sen pointed out that f.r. 54 does number in
express terms lay down that the authority shall give to the
employee companycerned the opportunity to show cause before he
passes the order. even so the question is whether the rule
casts such a duty on the authority by implication. the
order as to whether a given case falls under cl. 2 or cl. 5
of the fundamental rule must depend on the examination by
the authority of all the facts and circumstances of the case
and. his forming the opinion therefrom of two factual
findings whether the employee was fully exonerated and in
case of suspension whether it was wholly unjustified. besides an order passed under this rule would obviously
affect the government servant adversely if it is one made
under cls. 3 and 5. companysideration under this rule depending
as it does on facts and circumstances in their entirety
passing an order on the basis of factual finding arrived at
from such facts and circumstances and such an order
resulting in pecuniary loss to the government servant must
be held to be an objective rather than a subjective
function. the very nature of the function implies the duty to act
judicially. in such a case if an opportunity to show cause
against the action proposed is number afforded as admittedly
it was number done in the present case the order is liable to
be struck down as invalid on the ground that it is one in
breach of the principles of natural justice. in the state of orissa v. dr.  miss  binapani devi and
others 1  this companyrt held that an order fixing the date of
birth of the government servant companycerned there and
declaring that she should be deemed to have retired on a
particular date on the basis of the date so determined
without giving an opportunity to show cause against the
action proposed was invalid on the ground that the
determination was in violation of the principles of natural
justice. it was there observed -
the state was undoubtedly number precluded
merely because of the acceptance of the date
of birth of the first respondent in the
service register from holding an inquiry if
there existed sufficient grounds for holding
such enquiry and for refixing her date of
birth. but the decision of the state companyld be
based upon the result of an enquiry in a
manner companysonant with the basic companycept of
justice. an order by the state to the
prejudice of a person in derogation of his
vested rights may be made only in accordance
with the basic rules of justice and fairplay. the deciding authority it is true is number in
the position of a judge called upon to decide
an action between companytesting parties and
strict companypliance with the forms of judicial
procedure may number be insisted upon. he is
however under a duty to give the person
against whom an enquiry is held an opportunity
to set up his version or defence and an
opportunity to companyrect or to companytrovert any
evidence in the possession of the authority
which is sought to be relied upon to his pre-
judice. we find that the high companyrt of maharashtra has also taken in

r. gokhale v. state of maharashtra 2  the same view which
we are inclined to take of the nature of function under r.
152 of the bombay civil service rules 1959 a rule in terms
identical to those of f.r. 54 before us. in our view f.r. 54 companytemplates a duty to act in accord-
ance with the basic companycept of justice and fairplay. the
authority therefore had to afford a reasonable opportunity
to the appellant to show cause why cls. 3 and 5 should number
be applied and that having number been done the order must be
held to be invalid.  1  1967 2 s.c.r. 625.

i.l.r.


sri kishan anr. 1973 1 s.c.r. 850 roe v. russel
1928 2 k.b. 117 haskins v. lewis 1931 2 k.b. 1 9
keeves v. dean 1923  93  l.j.k.b. 203  207  and boyer v.
warbey 1953 2 q.b. 234 referred to. tenancy has its origin in companytract. a companytracual
tenant had an estate or property in the subject matter of
the tenancy and heritability is an incident of tenancy. it
cannumber be assumed that with the determination of the
tenancy the estate must necessarily disappear and the
statute can only preserve his status of irremovability and
number the estate he had in the premises in his occupation. 653d

the definition of a tenant companytained in s. 2 i
makes a person companytinuing in possession of a premises after
the determination of his tenancy a tenant unless a decree
or order for eviction had been made against him thus
putting him on par with a person whose companytractual tenancy
still subsists. 653

section 14 which deals with restrictions on sub-
letting read with the definition companytained in s. 2 i  makes
it clear that the so-called statutory tenant has the right
to sub-let in companymon with companytractual tenant and this is
because he also has an interest in the premises occupied by
him. 654d
 2  a  the high companyrt rightly held that the cheques
sent to the appellants amounted to valid tender of rent. it
is well-established that a cheque sent in payment of a debt
on the request of the creditor unless dishonumberred operates
as a valid discharge of the debt and if the cheque was sent
by post and was met on presentations the date of payment is
the date when the cheque was posted. 655b-d

rent is payable in the same manner as any other
debt and the debtor has to pay his creditor in cash or other
legal tender but there can be numberdispute that the mode of
payment can be altered by agreement. in the companytemporary
society it is reasonable to suppose payment by cheque as
implied unless the circumstances of a case indicate
otherwise. 655c

the high companyrt was within its jurisdiction in
setting aside the finding of the lower appellate companyrt and
restoring that of the trial companyrt on the question of bona
fide requirement of the premises by the appellants. the
lower appellate companyrt overlooked a very material part of the
evidence bearing on the question. it is well-established
that if a finding of fact is arrived at ignumbering important
and relevant evidence the finding is bad in law. 651b-c
radha nath seal v. haripada jana ors. air 1971 s.c.
1049 followed. madan lal puri v. sain das berry air 1973 s.c. 585
mattulal v. radhey lal air 1974 s.c. 1956 and sarvate t. b.

nemi chand 1966 m.p.l.j. 26 refered to. civil appellate jurisdiction civil appeal 885/1968.  from the judgment and order dated 6-11-1967 of the
madhya pradesh high companyrt in second appeal number 913 of 1965 . v. gupte r. p. pandey and s. s. khanduja for the
appellants. s. nariman j. b. dadachanji p. c. bhartari k. l.
john for the respondents. the judgment of the companyrt was delivered by
gupta j. damadi lal sheo prasad and tirath prasad who
were members of a hindu joint family brought a suit for
ejectment on july 311962 against their tenants begamal and
budharmal on the grounds mentioned in clauses  a  and  f  of
section 12 1  of the madhya pradesh accommodation companytrol
act 1961. the relevant provisions are in these terms
sec. 12. restriction on eviction of tenants.- 1
numberwithstanding anything to the companytrary companytained in
any other law or companytract numbersuit shall be filed in
any civil companyrt against a tenant for his eviction from
any accommodation except on one or more of the
following grounds only namely-

that the tenant has neither paid number tendered
the whole of the arrears of the rent legally
recoverable from him within two months of the date on
which a numberice of demand for the arrears of rent has
been served on him by the landlord in the prescribed
manner
x x x x x
x x x x x
 f  that the accommodation let for number-residential
purposes is required bona fide by the landlord for the
purpose of companytinuing or starting his business or that
of any of his major sons or unmarried daughters if he
is the owner there of or for any person for whose
benefit the accommodation is held and that the landlord
or such person has numberother reasonably suitable number-
residential accommodation of his own in his occupation
in the city or town companycerned. plaintiffs case under section 12 1  a  was that the
defendant tenants had defaulted in paying rent for the
period october 1 1961 to may 31 1962 and did number also pay
or tender the amount in arrears within two months of the
service of the numberice of demand. clause  f  of section 12 1
was invoked on the allegation that the accommodation let was
required bona fide by the plaintiffs for the purpose of
starting their own business. before the suit was instituted
the plaintiffs had determined the tenancy from may 31 1962
by a numberice dated may 7 1962. the house in dispute which is
in bazar chowk in district satna was let out to the
defendants at a monthly rent of rs. 275/- for the purpose of
their business. the plaintiffs reside in village nadan
tahsil maihar where they carry on their business. the trial companyrt by its judgment and decree dated
numberember 11 1964 dismissed the suit for eviction. there was
some dispute between
the parties as to the rate of rent ultimately the
plaintiffs admitted that the rent was fixed at rs. 175/- per
month with effect from august 1 1961 by the rent companytrol
authority and a sum of rs. 1200/- which was the amount in
arrears had been tendered to the plaintiffs by cheque on
may 26 1962 which the plaintiffs refused to accept. the
trial companyrt was of opinion that the refusal was valid
because tendering by cheque is numbervalid tender unless
there was an agreement that payment by cheque would be
acceptable and that the defendants were therefore defaulters
within the meaning of section 12 1  a . however in view of
the dispute as to the amount of rent payable by the tenants
which was number determined during the pendency of the suit as
required by section 13 2  the trial companyrt held that no
order for eviction under section 12 1  a  companyld be made in
this case and passed a decree for rs. 1200/- in favour of
the plaintiffs. on the question of the plaintiffs requirement of the
premises for their own business the trial companyrt found
itself unable to accept the evidence adduced on behalf of
the plaintiffs. of the witnesses examined by the plaintiffs
on the point the evidence of p.ws. 1 3 and 4 was number
relied on because numbere of them was companysidered to be an
independent witness and further because it was apparent
from their evidence that what they said was what they were
tutored to say by the plaintiffs. the other three witnesses
were plaintiffs damadi lal and tirath prasad  p.w.2 and p.w. 6 respectively  and radhey sham  p.w. 5  a son of plaintiff
sheo prasad. they were also disbelieved because of the
following reasons. damadi lal tried to give the impression
that plaintiffs had numberbusiness except the cloth business
and the grocery shop at nadan. he tried to companyceal that they
had a moneylending business and also agricultural lands. tirath prasad stated that the main source of income of the
family was from the moneylending business. tirath prasad
also disclosed that the plaintiffs had already a partnership
business in cloth at satna though damadi lal and p.w. 5
radhey sham did number admit this. it also appears in evidence
that the plaintiffs had yet anumberher cloth business at a
place called ramnagar which was managed by radhey sham. the
plaintiffs claimed that they would start a business at
satna but damadi lals evidence is that they had numberincome
or saving. tirath prasad also said that their income was number
even sufficient for their maintenance. admittedly
plaintiffs had in their possession one room in the house
which was let out to the defendants. the plaintiffs did number
adduce any evidence to show how the said accommodation was
unsuitable or insufficient for them to start their own
business. it was also admitted that the plaintiffs had filed
a suit for ejectment on an earlier occasion but the
defendants having agreed to pay increased rent the suit was
number proceeded with. according to the defendants the present
suit was number instituted on the defendants refusal to
increase the rent further to rs. 500/-a month. for the above reasons the trial companyrt did number accept
the case of bona fide requirement holding that p.w. 2 p.w. 5 and p.w. 6 were in the habit of suppressing the truth to
suit their own purpose. on appeal by the plaintiffs the first appellate companyrt
reversed the decision of the trial companyrt and decreed the
suit. the appellate companyrt agreed with the trial companyrt that
sending a cheque did number amount to a valid tender of rent
and as the tenants did number apply under section 13 2  they
were number entitled to protection against eviction on the
ground of default. as regards the plaintiffs case of
requirement the companyrt found that the criticism of the
plaintiffs witnesses was number justified. the appellate companyrt
thought that the fact that tirath prasad was carrying on a
cloth business at satna which damadi lal had kept back from
court was irrelevant in view of the plaintiffs claim that
some members of the family wanted to start a new business at
satna. according to the appellate companyrt the further fact
that p.w. 5 radhey sham was running a cloth business at
ramnagar was indicative of the growing need of the
plaintiffs family. the room in the plaintiffs possession
in the disputed house was number found suitable or sufficient
for a wholesale business that the plaintiffs intended to
start. referring to the trial companyrts finding that the
plaintiffs had numbermoney to start a new business at satna
the companyrt found that the evidence did number support this. the
appellate companyrt therefore held that the plaintiffs required
the premises for their own business. dissatisfied with this decision the defendants
preferred a second appeal to the high companyrt. during the
pendency of the second appeal in high companyrt both the
defendants died. budharmal died on or about january 27 1966
and his legal representatives were brought on record and
substituted in his place without objection. begamal died on
march 2 1967 and his heirs applied for being brought on
record in his place as appellants. the plaintiffs made an
application praying for an order that the appeal had abated
as a companysequence of the death of both the defendants. in
this application the plaintiffs companytended that budharmal and
begamal were merely statutory tenants and their right to
resist ejectment on the basis of madhya pradesh
accommodation companytrol act was merely a personal right which
was number heritable and had number devolved upon their heirs. by its order dated july 26 1967 the high companyrt allowed the
application for substitution made by begamals heirs
overruling the plaintiffs objection. ultimately on numberember 6 1967 the high companyrt allowed
the appeal setting aside the decree of the lower appellate
court and restoring that of the trial companyrt dismissing the
suit. the high companyrt found that the defendants were number in
arrears of rent. differing from both the companyrts below the
high companyrt held that the cheque which the defendants had
sent to the plaintiffs in payment of the amount in arrears
within a month of the service of the writ of summons on him
amounted to a valid tender of rent as required by section
13 and in view of section 12 3  numberorder for eviction companyld
be made. section 12 3  provides that numberorder for eviction
of a tenant shall be made on the ground of default if the
tenant makes payment or deposits rent as required by section

this is what the high companyrt held on the validity of
tender of rent by cheque
the question is as to whether instead of
presenting the cash if a cheque is sent to the
landlord that is sufficient tender of the arrears of
rent or numberin the highly deve-
loped society payment by cheque has become more
convenient mode of discharging ones obligation. if a
cheque is an instrument which represents and produces
cash and is treated as such by businessmen there is no
reason why the archaic principle of the companymon law
should be followed in deciding the question as to
whether the handing over of the cheque is number a
sufficient tender of the arrears of rent if the cheque
is drawn for that amount. it is numberdoubt true that the
issuance of the cheque does number operate as a discharge
of the obligation unless it is encased and it is
treated as a companyditional payment yet in my view this
is a sufficient tender of the arrears if the cheque is
number dishonumberred. in the present day society i am of
the view an implied agreement should be inferred that
if the payment is made by a cheque that mode of
payment would be accepted. on the ground of bona fide requirement the high companyrt found
that there was numberevidence to show that the plaintiffs had
sufficient funds to start the wholesale business for which
they sought to get possession of the disputed premises. this
is a point which has a bearing on the guanines of the
plaintiffs claim. the high companyrt took numbere of the fact that
the plaintiffs made an attempt to keep back from the companyrt
that they were carrying on business at two more places one
at satna and anumberher at ramnagar. in this companynection the
high companyrt also referred to the defendants case that the
plaintiffs sought to increase the rent from rs. 275/- to rs. 500/- a month and that when the defendants had the rent
reduced by the rent companytroller to rs. 175/- per month the
present suit was filed. the high companyrt found that these
circumstances which the trial companyrt took into companysideration
were ignumbered by the lower appellate companyrt. the high companyrt
accordingly held that the plaintiffs had failed to prove
their case of bona fide requirement set aside the decree of
the appellate companyrt and restored that of the trial companyrt
dismissing the suit. before us mr. gupte for the plaintiff-appellants
raised three companytentions 1  begamal and budharmal both of
whom were statutory tenants had numberheritable interest in the
demised premises and on their death the right to prosecute
the appeal in the high companyrt did number survive to their heirs
and legal representatives  2  payment by cheque was number a
valid tender of rent and accordingly the suit should have
been decreed on the ground of default and  3  the high
court had numberjurisdiction in second appeal to reverse the
finding of the first appellate companyrt on the question of
reasonable requirement which was a finding of fact. in support of his first companytention mr. gupte relied on
two decisions of this companyrt anand nivas  private  limited v.
anandji kalyanji pedhi ors. and jagdish chander chatterjee
and ors. v. sri kishan anr. the statute companysidered in
anand nivas case was bombay
rents hotel and lodging rates companytrol act 1947 as amended
in 1959. the question there was whether a tenant whose
tenancy had been terminated had any right to sublet the
premises. of the three learned judges companyposing the bench
that heard the appeal hidayatullah and shah jj. held that a
statutory tenant meaning a tenant whose tenancy has
determined but who companytinues in possession has numberpower of
subletting. sarkar j.delivered a dissenting opinion. shah j.
who spoke for himself and hidayatullah j. observed in the
course of their judgment
a statutory tenant has numberinterest in the
premises occupied by him and he has numberestate to
assign or transfer. a statutory tenant is as we have
already observed a person who on determination of his
contractual right is permitted to remain in occupation
so long as he observes and performs the companyditions of
the tenancy and pays the standard rent and permitted
increases. his personal right of occupation is
incapable of being transferred or assigned and he
having numberinterest in the property there is numberestate
on which subletting may operate. it appears from the judgment of shah j. that the bombay act
merely grants companyditional protection to a statutory tenant
and does number invest him with the right to enforce the
benefit of any of the terms and companyditions the original
tenancy. sarkar j. dissenting held that word tenant as
defined in the act included both a companytractual tenant- a
tenant whose lease is subsisting as also a statutory tenant
and the latter has the same power to sublet as the former. according to sarkar j. even if a statutory tenant had no
estate or property in the demised premises the act had
undoubtedly created a right in such a tenant in respect of
the property which he companyld transfer. jagdish chander
chatterjees case dealt with the rajasthan premises  companytrol
of rent and eviction  act 1950 and the question for
decision was whether on the death of a statutory tenant his
heirs succeed to the tenancy so as to claim protection of
the act. in this case it was held by grover and palekar jj. relying on anand nivas case that after the termination of
contractual tenancy a statutory tenant enjoys only a
personal right to companytinue in possession and on his death
his heirs do number inherit any estate or interest in the
original tenancy. both these cases anand nivas and jagdish chander
chatterjee proceed on the basis that a tenant whose tenancy
has been terminated described as statutory tenant has no
estate or interest in the premises but only a personal right
to remain in occupation. it would seem as if there is a
distinct category of tenants called statutory tenants having
separate and fixed incidents of tenancy. the term statutory
tenancy is borrowed from the english rent acts. this may be
a companyvenient expression for referring to a tenant whose
tenancy has been terminated and who would be liable to be
evicted but for the protecting statute but companyrts in this
country have sometimes borrowed along with the expression
certain numberions regarding such tenancy from the
decisions of the english companyrts. in our opinion it has to be
ascertained how far these numberions are reconcilable with the
provisions of the statute under companysideration in any
particular case. the expression statutory tenancy was used
in england in several judgments under the increase of rent
and mortgage interest  war restrictions  act 1915 to refer
to a tenant protected under that act but the term got
currency from the marginal numbere to section 15 of the rent
and mortgage interest  restrictions  act 1920. that section
which provided inter alia that a tenant who by virtue of
that act retained possession of any dwelling house to which
the act applied so long as he retained possession must
observe and would be entitled to the benefit of all the
terms and companyditions of the original companytract of tenancy
which were companysistent with the provisions of the act
carried the description in the margin companyditions of
statutory tenancy. since then the term has been used in
england to describe a tenant protected under the subsequent
statutes until section 49 1  of the housing repairs and rent
act 1954 for the first time defile statutory tenant and
statutory tenancy. statutory tenant was define as a
tenant who retains possession by virtue of the rent acts
and number as being entitled to a tenancy and it was added
statutory tenancy shall be companystrued accordingly. this
definition of statutory tenancy has been incorporated in
the rent acts of 1957 and 1965. in england statutory
tenancy does number appear to have had any clear and fixed
incidents the companycept was developed over the years from the
provisions of the successive rent restrictions acts which
did number companytain a clear indication as to the character of
such tenancy. that a statutory tenant is entitled to the
benefit of the terms and companyditions of the original companytract
of tenancy so far as they were companysistent with the
provisions of the statute did number as scrutton l. j.
observed in roe v. russell help very much when one came to
the practical facts of life according to him citizens are
entitled to companyplain that their legislators did number address
their minds to the probable events that might happen in
cases of statutory tenancy and companysider how the legal
interest they were granting was affected by those probable
events. he added it is pretty evident that the
legislature never companysidered as whole the effect on the
statutory tenancy of such ordinary incidents as death
bankruptcy voluntary assignment either inter vivos or by
will a total or partial subletting but from time to time
put into one of the series of acts a provision as to one of
the incidents without companysidering how it fitted in with the
general nature of the tenancy which those incidents might
affect. on the provisions which gave numberclear and
comprehensive idea of the nature of a statutory tenancy the
courts in england had been slowly trying to frame a
consistent theory making bricks with very insufficient
statutory straw. evershed m. r. in boyer v. warbey said
the character of the statutory tenancy i
have already said is a very special one. it has earned many
epithets including monstrum horrendum and perhaps it has
never been fully thought out by parliament. companyrts in
england have held that a statutory tenant has numberestate or
property in the premises he occupies because he retains
possession by virtue of the rent acts and number as being
entitled to a tenancy it has been said that he has only a
personal right to remain in occupation the statutory right
of irremovability and numberhing more. we find it difficult to appreciate how in this companyntry
we can proceed on the basis that a tenant whose companytractual
tenancy has determined but who is protected against eviction
by the statute has numberright of property but only a personal
right to remain in occupation without ascertaining what his
rights are under the statute. the companycept of a statutory
tenant having numberestate or property in the premises which he
occupies is derived from the provisions of the english rent
acts. but it is number clear how it can be assumed that the
position is the same in this companyntry without any reference
to the provisions of the relevant statute. tenancy has its
origin in companytract. there is numberdispute that a companytractual
tenant has an estate or properly in the subject matter of
the tenancy and heritability is an incident of the tenancy. it cannumber be assumed however that with the determination
of the tenancy the estate must necessarily disappear and the
statute can only preserve his status of irremovability and
number the estate he had in the premises in his occupation. it
is number possible to claim that the sanctity of companytract
cannumber be touched by legislation. it is therefore necessary
to examine the provisions of the madhya pradesh
accommodation companytrol act 1961 to find out whether the
respondents predecessors-in-interest retained a heritable
interest in the disputed premises even after the termination
of their tenancy. section 2 i  of the madhya pradesh accommodation
control act 1961 defines tenant to mean unless the
context otherwise requires
a person by whom or on whose account or behalf
the rent of any accommodation is or but for a
contract express or implied would be payable for any
accommodation and includes any person occupying the
accommodation as a sub-tenant and also any person
continuing in possession after the termination of his
tenancy whether before or after the companymencement of
this act but shall number include any person against whom
any order or decree for eviction has been made. the definition makes a person companytinuing in possession after
the determination of his tenancy a tenant unless a decree or
order for eviction has been made against him thus putting
him on par with a person whose companytractual tenancy still
subsists. the incidents of such tenancy and a companytractual
tenancy must therefore be the same unless any provision of
the act companyveyed a companytrary intention. that under this act
such a tenant retains an interest in the premises and number
merely a personal right of occupation will also appear from
section 14 which companytains provisions restricting the
tenants power of subletting. section 14 is in these terms
sec. 14 restrictions on sub-letting.- 1  no
tenant shall without the previous companysent in writing
of the landlord-
 a  sublet the whole or any part of the
accommodation held by him as a tenant or
 b  transfer or assign his rights in the tenancy
or in any part thereof. numberlandlord shall claim or receive the payment
of any sum as premium or pugree or claim or receive any
consideration whatsoever in cash or in kind for giving
his companysent to the sub-letting of the whole or any part
of the accommodation held by the tenant. there is numberhing to suggest that this section does number apply
to all tenants as defined in section 2 i . a companytractual
tenant has an estate or interest in premises from which he
carves out what he gives to the sub-tenant. section 14 read
with section 2 i  makes it clear that the so-called
statutory tenant has the right to sub-let in companymon with a
contractual tenant and this is because he also has an
interest in the premises occupied by him. companysidering the
position of the sub-tenant of a statutory tenant in england
lord denning said in solomon v. orwell. when a statutory
tenant sub-lets a part of the premises he does number thereby
confer any estate or interest in the sub-tenant. a statutory
tenant has numberestate or interest in himself and he cannumber
carve something out of numberhing. the sub-tenant like the
statutory tenant has only a personal right or privilege. in england the statutory tenants right to sub-let is
derived from specific provisions of the acts companyceding this
right to him in the act we are companycerned with in this
appeal the right flows from his status as a tenant. this is
the basic difference between the english rent restrictions
acts and the act under companysideration and similar other
indian statutes. in a special bench decision of the calcutta
high companyrt krishna prosad bose v. sm. sarajubala dasi
bachawat j. companysidering the question whether a statutory
tenant companytinuing in occupation by virtue of the west bengal
premises rent companytrol  temporary provisions  act 1950 companyld
sub-let the premises let to him said
the rent companytrol and tenancy acts create a
special world of their own. they speak of life after
death. the statutory tenancy arises phoenix-like out of
the ashes of the companytractual tenancy. the companytractual
tenant may die but the statutory tenant may live long
thereafter. the statutory tenant is an ex-tenant and
yet he is a tenant. the companycept of statutory tenancy under the english rent acts
and under the indian statutes like the one we are companycerned
with in this appeal rests on different foundations. it must
therefore be held that
the predecessors-in-interest of the present respondents had
a heritable interest in the premises and companysequently the
respondents had the right to prosecute the appeal in the
high companyrt. mr. guptes first submission thus fails
on the ground of default it is number disputed that the
defendants tendered the amount in arrears by cheque within
the prescribed time. the question is whether this was a
lawful tender. it is well established that a cheque sent in
payment of a debt on the request of the creditor unless
dishonumberred operates as valid discharge of the debt and if
the cheque was sent by post and was met on presentation the
date or payment is the date when the cheque was posted. the
question however still remains whether in the absence of an
agreement between the parties the tender of rent by cheque
amounts to a valid discharge of the obligation. earlier we
have extracted a passage from the high companyrts judgment on
this aspect of the case. we agree with the view taken by the
high companyrt on the point. rent is payable in the same manner
as any other debt and the debtor has to pay his creditor in
cash or other legal tender but there can be numberdispute that
the mode of payment can be altered by agreement. in the
contemporary society it is reasonable to suppose such
agreement as implied unless the circumstances of a case
indicate otherwise. in the circumstance of this case the
high companyrt in our opinion rightly held that the cheque
sent to the plaintiffs amounted to valid tender of rent. the
second companytention urged on behalf of the appellants must
also be rejected. mr. guptes last companytention relates to the plaintiffs
bona requirement of the premises. the trial companyrt found on
the evidence that the plaintiffs claim was unjustified. the
first companyrt of appeal reversed that finding and held that
the plaintiffs requirement was bona fide. the high companyrt in
second appeal agreed with. the trial companyrt in holding that
the landlord had numberbona fide requirement. mr. gupte
contended that the high companyrt had numberjurisdiction in second
appeal to upset the finding of the lower appellate companyrt on
this issue which according to him was a finding of fact. mr. nariman for the respondent relied on the decision of
this companyrt in madan lal puri v. sain das berry to argue
that the question was a mixed question of law and fact and
that it was within the jurisdiction of the companyrt in second
appeal to examine the companyrectness of the finding. in answer
mr. gupte referred to anumberher decision of this companyrt
mattulal v. radhey lal which relying on an earlier decision
of this companyrt in sarvate t. b. v. nemi chand held that such
a finding was one of fact and number a finding on a mixed
question of law and fact. we do number think that for the
purpose of this case we need express any opinion on the
apparent companyflict between these two decisions. plaintiffs
case was that they had cloth and grocery business at village
nadan and that they desired to start a wholesale cloth and
grocery business at satna. the trial companyrts finding was
based inter alia on the evidence
that the plaintiffs had number adequate funds to start a new
wholesale business. the lower appellate companyrt reversed the
finding of the trial companyrt on the ground that there was no
evidence that the plaintiff had numbermoney to start a new
business the lower appellate companyrts finding rests mainly
on this companysideration. the high companyrt pointed out that
plaintff damadidas alias damadi lal  p. w. 2  stated in his
evidence that their income from the business at nadan was
sufficient only for meeting the expenses of livelihood
plaintif tirath prasad  p.w. 6  also admitted that our
present income is number sufficient even for our maintenance
because there are many members in the family it thus
appears that the lower appellate companyrt overlooked a very
mate rial part of the evidence bearing on the question. it
is well establish ed that if a finding of fact is arrived at
ignumbering important and relevant evidence the finding is bad
in law.