criminal appellate jurisdiction criminal appeal number
320/75. appeal by special leave from the judgment and order
dated 2.4.1975 of the punjab and haryana high companyrt in
criminal appeal number 1044/74 and murder reference number 50/74. g. bhagat and r.n. poddar for the appellant. mrs. urmila sirur for the respondents. the judgment of the companyrt was delivered by
baharul islam j. this appeal by special leave by the
state of haryana is directed against the judgment and order
of the punjab and haryana high companyrt setting aside the
conviction and and sentence passed by the session judge
karnal. respondents balkar singh and dalel singh are the
sons of respondent sher singh. the session judge companyvicted
all the three under section 302/34 of the penal companye and
sentenced sher singh to death and the other two to
imprisonment for life. on a reference by the sessions judge
for the companyfirmation of the sentence of death inflicted on
sher singh and appeal filed by the respondents the high
court set aside the order of companyviction and sentence and
acquitted the respondents. the material facts may be stated thus on 17th of
october 1973 at about 12 a.m. mst. narman widow of danna
 deceased  submitted the first information report to a.s.i. ram sarup  p.w. 12  at village pai. her material allegations
in the first information report were that the previous day
respondent sher singh and his two younger half brothers
namely danna her husband and hukmi had effected a family
partition amongst themselves and they started living
separately. that day namely 17th of october at about 6.00

m. her husband danna along with his brothers hukmi and
respondents sher singh came to their bagichi nearby from the
house in order to milk cattle. she followed them in order to
fetch milk. respondent sher singh then along with his sons
dalel balkar keni prem and parwana surrounded her husband
and her husbands younger brother hukmi in the companyrtyard. sher singh had a gandasi in his hand dalel a lathi shoded
with iron blade the other three had lathis in their hands. sher singh dealt a gandasa blow on the head of her husband
danna who immediately fell down on the ground. dalel then
dealt a blow with iron shoded lathi on the head of hukmi who
also fell down on the ground. the other accused then
inflicted blows with lathis on the persons after they had
already fallen down. respondent sher singh dealt anumberher
gandasi blow on her husband. she has further stated in the
first information report that mst. danni sister of
respondent sher singh was also with her and witnessed the
occurrence. they screamed seeing the assaults whereupon
they were directed on pain of death to sit in the companyner of
the companyrt-yard. out of fear they obliged. thereafter it has further been
alleged the accused persons dragged the dead bodies to
their nearby heap of company-dung cakes. sher singh spread
kerosene on the heap of the cakes and dalel set fire to it
lighting a match stick. as a result the two bodies were
charred. p.w. 12 sent the f.i.r. to the police station where
the case was registered. police after investigation
submitted charge-sheet and arrested the accused persons. eventually the accused persons were charged under section
302/34 of the penal companye and tried in the companyrt of
sessions. the accused persons pleaded number guilty to the
charges. according to them the three brothers were joint in
residence mess and cultivation till the date of the
occurrence. the defence of respondent sher singh was that
his two sons dalel and balkar and the deceased brothers
danna and hukmi used to sleep in the bagichi during the
night to keep watch over their cattle tethered there. on
october 16 1973 he and his two deceased brothers were in
their fields during the day and in the evening he went to
their field where companyton was ripe and he remained there to
keep watch over the companyton till next morning. that field was
at a distance of about 1 1/2 miles from their bagichi. about
1 1/2 hours after sun rise on october 17 1973 he returned
to the bagichi where he found the heap of company-dung cakes in
the enclosure of bagichi burning. police then arrested him. the defence of respondent dalel was that two days before the
date of occurrence he went to his maternal uncle lalji at
narwara to borrow a tractor. he returned home on the 17th of
october 1973 at about sun-set. he found the heap of company-
dung burning and police inside the bagichi where he was
arrested by the police. the defence of respondent balkar was
that he was a student of 9th class and on 16th of october
1973 he had been to school to witness some sports. he passed
the following night in village diwali where his sister was
married. he returned home on october 17 1973 and when he
reached the bagichi he found the heap of company-dung burning
and he was arrested by the police there. thus the defence
of all the respondents was alibi. when an accused pleads alibi the burden is on him
to prove it under section 103 of the evidence act which
provides

the burden of proof as to any particular fact
lies on that person who wishes the companyrt to believe in
its existence unless it is provided by any law that
the proof of that fact shall lie on any particular
person. illustrations  a  a prosecutes b for theft and wishes
the companyrt to believe that b admitted the theft to c. a
must prove the admission. b wishes the companyrt to believe that at the time in
question he was elsewhere. he must prove it. in this case defence did number adduce any evidence to
prove the alibi. on the companytrary the evidence of p.w. 11
lila is that on 21st october 1973 all the accused were
produced by lalji the brother of the wife of respondent
sher singh in village nand karan majra around 8 a.m. when
they were arrested. this was in presence of p.w. 11 and
several others. police had been there the witness says from
october 17 to 20 1973. this evidence of p.w. 11 remains
unrebutted. the plea of the respondents that they had been
elsewhere at the time of the occurrence and returned to the
place of occurrence by themselves on october 17 when they
were arrested by police is untrue. let us number turn to and examine the prosecution case
and see whether the prosecution has proved the guilt of the
accused beyond reasonable doubt. the death of danna and hukmi is number in dispute. that
the dead bodies were burnt on the company dung heap by the side
of the bagichi is also number in dispute. the only question for decision is whether danna and
hukmi were murdered and their dead bodies were burnt by the
respondents as alleged by the prosecution. the prosecution
relies on the following piece of evidence

motive of the murder

direct evidence of the alleged eye witnesses p.w. 3 and 4

extra judicial companyfession alleged to have been
made by respondent sher singh before p.w. 10 and

recoveries of incriminating articles on disclosure
statements alleged to have been made by the
respondents. motive-p.w. 3 mst. narman has deposed that two
days before the day of occurrence deceased danna hukmi and
respondent sher singh made an amicable partition of their
property. they divided their land  except shamlat land
house cattle utensils and grains. respondent sher singh
however refused to part with joint
cash and jewellery. danna refused to part with any share of
the shamlat land unless the cash and jewellery were divided. w. 4 mst. danni and jhanda  p.w. 10  support p.w. 3 it
therefore appears that there was some sort of hitch
between respondent sher singh on the one hand and his half
brothers danna and hukmi on the other. the high companyrt
declined to accept the evidence of p.w. 10 in as much as he
had number mentioned the fact of partition in his statement
before the police. the prosecution is number bound to prove motive of any
offence in a criminal case in as much as motive is knumbern
only to the perpetrator of the crime and may number be knumbern to
others. if the motive is proved by prosecution the companyrt
has to companysider it and see whether it is adequate. in the
instant case the motive proved was apparently inadequate
although it might be possible. direct evidence-p.w. 3 mst. narman has deposed
that 15 days before the date of occurrence p.w. 4 danni who
was at her husbands house to help her as she was expecting
a child one of these days. in fact she delivered a child 12
days after the occurrence. she has supported the prosecution
case in its entirety. she says that in the morning about the
time of sun-rise on the date of occurrence deceased danna
and hukmi went to the panchayat land where their cattle had
been tethered in order to milk them. she followed them to
bring milk home. danna also accompanied her to make company dung
cakes. at that time she found that the respondents had been
standing in the panchayat land armed with dangerous weapons. respondent sher singh gave gandasi blow on the head of danna
who immediately fell down on the ground. dalel also gave a
blow on the head hukmi who also fell down. all of them
thereafter indiscriminately assaulted the two injured
persons. both of them died as a result. she and danna began
to scream whereupon the culprits asked her and danna to keep
quiet on pain of death and they asked them to sit on one
side of the place. both of them out of fear did as directed. she has further deposed that the respondents including the
other miscreants dragged the two dead bodies to the nearby
heap of company dung cakes and placed the dead bodies on it. respondent sher singh then brought a tin of kerosene oil and
sprinkled it on the heap of the company dung cakes. respondent
dalel put fire to the company dung cakes. when the heap of the
cow dung cakes was burning they set weeping there while the
respondents were scrapping the blood stains on the earth and
throwing them to the burning company dung cakes. after some time

w. 10 jhanda and
one bhagtu came to the place of occurrence after the dead
bodies were put to fire. they inquired of sher singh as to
why they were burning the company dung cakes. sher singh replied
that he had murdered his two brothers and was burning their
dead bodies. he however threatened them to mind their own
business and said that if they raised any alarm they would
be similarly murdered and put to fire. p.w. 10 jhandu and
bhagtu then left the place. the process of burning took
about three hours. all this time the culprits were at the
place of occurrence scraping the blood stained spots. they
then changed their blood stained clothes threw them to the
fire and put on new clothes and left the place with weapons
in hands towards village bhana. after the departure of the
culprits the witness along with p.w. 4 left for the nearby
village. they narrated the occurrence to the villagers and
told them as to how her husband and brother-in-law had been
murdered and their dead bodies burnt. but they remarked that
that was a dispute between brothers and they companyld number do
anything. the witness then left the village for police
station at pundri to lodge an offence report. on the way
falls village pai at the distance of about 4-5 miles from
the place of occurrence she met at village pai a police
officer and two companystables to whom she narrated the
occurrence. her statement was recorded by p.w. 12 ram
sarup an assistant sub-inspector of pundri police station
who was at pai. she was then accompanied home by two
constables. while p.w. 12 sent the f.i.r. to the police
station for registering a case. they reached the place of
occurrence after some time. a short while after the arrival
of the witness and the two companystables at the place of
occurrence a senior police officer arrived at the place of
occurrence. they with the help of some other persons who had
gathered there in the mean time started to extinguish the
fire by putting buckets of water on it. w. 4 danni companyroborates p.w. 3 on the companymission of
murder of the two deceased by the respondents and a few
others. p.w.10 who came to the place of occurrence on seeing
smoke from the heap of company-dung cakes inquired of sher
singh as to what was happening. he has deposed that he was
told by sher singh that he had killed his two brothers and
was burning their dead bodies and that he was asked on pain
of murder to mind his own business and number to raise alarm. he and bhagtu then left the place. ws. 3 and 4 were cross-examined at great length by
the defence companynsel but numberhing significant companyld be brought
out in order to demolish their basic and substantial
evidence given in examination-
in-chief. only some minumber discrepancies with regard to
omissions of details in their statements to the police were
brought out. these omissions in our opinion were number
contradictions and insignificant. the high companyrt has rejected the evidence of p.ws. 3 and
4 on the ground  a  that they were close relations of the
two deceased  b  that p.w. 3 had omitted to mention in the

i.r. that she had informed any person of the village
before leaving for the police station  c  that it was
highly improbable and unnatural that p.w. 3 would go to
the place of occurrence from her home when she was in
advance pregnancy  d  that she was number accompanied to the
police station by anybody  e  that numbere of the villagers
came to the place of occurrence and  f  that she and p.w. 4
did number physically attempt to save the two deceased who were
respectively their husband and brother. ultimately the high
court found that most probably both smt. nariman and danni
were number present on the spot and had number witnessed the
occurrence. in our opinion the companyclusion arrived at by the learned
high companyrt is untenable. the learned high companyrt has taken a
very unrealistic view of the situation and of the facts and
circumstances of the case. there is numberevidence that p.ws 3
and 4 companyld or did raise any alarm. when they were about to
scream they were threatened on pain of murder to keep quiet
and sit. there is evidence that both the deceased as well as

ws 3 and 4 were unarmed whereas the respondents were
armed with dangerous weapons. in such a situation it will be
too much to expect of p.ws 3 and 4 to try to physically
intervene and save the two deceased. although it is true
that p.ws 3 and 4 were close relations of the two deceased
their evidence companyld number be rejected on that ground. they
were also related to the respondents and there is numberhing on
record to show that they were inimically disposed to the
respondents to falsely implicate the respondent in a murder
case like this. they were the most natural witnesses. although it was number the case of defence that some of the
people of the panchayat companyspired with p.ws 3 and 4 to
implicate the respondents in this murder case the high companyrt
made out its own theory to that effect. there is numberevidence
or circumstances from which that inference companyld be drawn. it was a pure companyjecture that it was best opportunity for
the panchas and sarpanch and other respectables of the
village to take special interest in bringing the culprits to
book by companytacting the police at the earliest if the
culprits were number other persons than the appellants. the
high companyrt has also based its finding on companyjecture that the
two deceased were murdered by unknumbern culprits and they were
falsely implicated by the village
respectables on suspicion. this hypothesis does number stand
any scrutiny. respondent sher singh in his statement says
it was routine for me and my two elder sons and two step
brothers to sleep in the bagichi during night where we used
to tie our cattle. even the high companyrt has found
that they  deceased  like sher singh or sher singhs sons
used to sleep in the bagichi in the night to keep watch over
them  cattle . if that be so had the murder been
perpetrated by unknumbern culprits there was numberreason as to
why the the respondents did number intervene and inform any of
the neighbours. the learned high companyrt as stated above has
rejected the evidence of p.w. 3 on the ground that she did
number mention in the f.i.r. that she had informed any person
of the village before she lodged the f.i.r. the f.i.r. need
number companytain the details of the occurrence. the omission
referred to by the high companyrt is an omission of details and
number really a companytradiction. the high companyrt also was number
right in observing that it was surprising that as stated by
mst. narman numberody in the village listened to her story number
did anybody go to her help when she went to abadi land of
the village after the departure of the appellants from the
place of occurrence. in fact p.w. 10 had companye to the place
of occurrence before p.ws 3 and 4 left the place of
occurrence for the village. the way p.w. 10 was treated by
respondent sher singh was sufficient to deter any other
villager to companye to the place of occurrence. the high companyrt
has also found it a mystery that numbere of the villagers
came to the place of occurrence and intervened in the
matter. there is numberevidence on record to show that when the
assaults on the deceased were in progress or the dead bodies
were being burnt any of the villagers in fact knew about
the occurrence. in fact p.w. 10 and bhagtu had seen the
smokes from the company dung cakes and came to the place of
occurrence. the high companyrt has also observed that it was unlikely
that p.w. 3 would go to the bagichi in such an advance stage
of pregnancy in order to bring milk from there at sun rise
in as much as p.w. 4 had already companye there to help her in
domestic work. it is companymon experience that in villages
women who regularly attend to their domestic chore and work
in the field work some time till the very moment of actual
child birth. p.w. 4 was brought to help her as in her
advance stage of pregnancy she companyld number work as briskly as
before. the learned high companyrt has also observed that
presence of p.w. 4 danni at the place of occurrence was number
natural because had she been present there she would have
out of love for her real brothers physically intervened and
tried to save them from the clutches of assaults. it has
been observed before that they were asked to keep
quiet and sit on pain of murder. it cannumber be forgotten that
danni was also an unarmed village women and the first
instinct of a being is the instinct of self-preservation. in
our opinion therefore it was number unnatural that she
would number as she companyld number attempt to save the two
deceased from murder. the high companyrt has also observed that
in any case p.w. 4 would have raised hue and cry. she companyld
number raise an outcry as she was told by sher singh that she
would be murdered and burnt if she did so. it was therefore
but natural that she did number raise any hue and cry. extra judicial companyfession- the evidence of p.w. 10 has also been referred to above. he has deposed that when
seeing the smoke he went to the place of occurrence and
inquired of sher singh as to why they were burning the heap
of company dung cakes he replied that he had murdered his two
brothers and was burning their dead bodies. this is an
extrajudicial companyfession so far as sher singh is companycerned. the high companyrt has number accepted the evidence of p.w. 10 on
the ground that this was number mentioned by p.w. 3 in the
first information report. this was an omission. that apart
it must be remembered that p.w. 4 who saw with her own eyes
such a brutal murder of her husband and brother-in-law must
have been dazed and at her wits end. in such a situation it
could number be expected of her to give all the details in the
first information report. and on account of the omission

w. 10 companyld number be disbelieved. recoveries of incriminating articles - the last
piece of evidence on which reliance has been taken by the
prosecution is the recoveries of incriminating weapons. the
evidence of p.w. 13 the investigating officer is that
respondent sher singh on 23rd of october 1973 made a
disclosure statement which is exhibit pl. the disclosure was
that sher singh had kept companycealed a gandasi in the bundle
of sugar cane in his field and he companyld get the same
recovered. in pursuance of his disclosure the gandasi ex. p.
26 was recovered from that place. the gandasi was stained
with blood and was seized under seizure memo ex. pl/1. on
the same day respondent dalel singh made a disclosure
statement ex. pm and disclosed that he had kept companycealed a
lathi to which an iron piece was attached in his gowar field
and he companyld get the same recovered. in pursuance of his
disclosure lathi ex. p. 27 which was stained with blood was
recovered. it was seized under seizure memo ex. pm/1. on the
same day respondent balkar singh made a disclosure
statement ex. pn that he had kept companycealed a lathi in his
kikar branches fence and he companyld get the same recovered. in
pursuance of his disclosure
statement lathi ex. p. 28 which was stained with blood was
recovered. it was seized under seizure memo ex. pn/1. these
discoveries were made in presence of p.w. 11 lila who was
sarpanch of the local panchayat. the high companyrt declined to
put any importance to the recoveries as the respondents were
number interrogated by police from october 20 to 24. in our
opinion that cannumber be a sufficient justification to hold
that the recoveries were fake. the weapons were recovered
at the pointing of the respondents. in addition the investigating officer seized an empty
kerosenetin lying at the place of occurrence the tin was
emitting smell of kerosene oil and it was seized under
seizure memo ex. pj which was attested by p.w. 11. in
addition anumberher circumstance tends to support the
complicity of the respondents in the offence. it is the
conduct of the respondents. the two deceased who had been
murdered by whomsoever it might be were near blood
relations of the respondents. if the murder had been
committed by some others as supposed by the high companyrt
they would number have kept quiet. of companyrse they have stated
in their defence that they were away from home in some other
places and returned to the place of occurrence on 17th
october 1973 which has been found by us to be untrue. this
conduct of the respondents is incriminating. as a result of the above discussions we hold
agreeing with the learned sessions judge that the guilt of
the respondents has been established by the prosecution
beyond all reasonable doubt. in the result we allow the
appeal set aside the judgment and order of acquittal of the
high companyrt and companyvict the respondents under section 302/34
of the penal companye. number companyes the question of sentence. the murder is
ghastly and brutal. respondent sher singh deserved the
extreme penalty provided by law the learned sessions judge
was right in imposing death sentence on him. but in view of
the fact that the learned sessions judge passed the order of
conviction and sentence as early as 27th july 1974 and the
high companyrt passed the order of acquittal as early as 2nd of
april 1975 we refrain from visiting respondent sher singh
with the extreme penalty provided by law for murder. we
sentence all the respondents to imprisonment for life.


criminal appellate jurisdiction criminal appeal number 248 of
1964.
appeal from the judgment and order dated september 16
1964 of the allahabad high companyrt in criminal appeal number 348
of 1964 and capital sentence number 26 of 1964.

c. khanna for the appellant. p. rana for the respondent. the judgment of the companyrt was delivered by
subba rao j. sahoo the appellant is a resident of
pachperwa in the district of gonda. he has two sons badri
and kirpa shanker. he lost his wife years ago. his eldest
son badri married one sunderpatti. badri was employed in
lucknumber and his wife was residing with his father. it is
said that sunderpatti developed illicit intimacy with sahoo
but there were incessant quarrels between them. on august
12 1963 during one of those quarrelssunderpatti ran away
to the house of one mohammed abdullah a neighbour of
theirs. the appellant brought her buck and after some wordy
altercation between them they slept in the only room of
their house. the only other inmate of the house was the
appellants second son kirpa shanker a lad of about 8
years. on the morning of august 13 1963 sunderpatti was
found with serious injuries in the room of the house where
she was sleeping and the appellant was number in the house. sunderpatti was admitted in the sadar hospital gonda at
5.25 p.m. on that day and she died on august 26 1963 at 3
p.m. sahoo was sent up for trial before the companyrt of
sessions gonda on a charge under s. 302 of the indian
penal companye. the learned sessions judge on a companysideration of the
entire evidence came to the companyclusion that sahoo killed
sunderpatti. on that finding he companyvicted the accused under
s. 302 of the indian penal companye and sentenced him to death. on appeal a division bench of the high companyrt at allahabad
confirmed both the companyviction and the sentence. hence the
appeal. except for an extra-judicial companyfession the entire
evidence in the case is circumstantial. before we advert to
the arguments advanced in the appeal it will be companyvenient
to narrate the circumstances found by the high companyrt which
are as follows  1  the accused had illicit companynections with
the deceased  2  the deceased and the accused had some
quarrel on the janmashtami day in the evening and the
deceased had to be persuaded through the influence of their
neighbors mohammed abdullah and his womenfolk to go back
to the house of the accused  3  the deceased was seen in
the companypany of the accused for the fast time when she was
alive  4  during the fateful night 3 persons namely. the
accused. the deceased and the accuseds second son kirpa
shanker  p.w. 17  slept in the room inside the house  5
on the early morning of next day p.w. 17 was asked by his
father to go out to attend to calls of nature and when he
came back to the verandah of the house he heard some
gurgling sound and he saw his father going out of the house
murmuring something and  6  p. ws. 9 11 13
and 15 saw the accused going out of the house at about 6
a.m. on that day soliloquying that he had finished
sunderpatti and thereby finished the daily quarrels. this companyrt in a series of decisions has reaffirmed the
following well-settled rule of circumstantial evidence. the circumstances from which the companyclusion of guilt is to
be drawn should be in the first instance fully established. all the facts so established should be companysistent only with
the hypothesis of the guilt of the accused and the
circumstances should be of a companyclusive nature and tendency
that they should be such as to exclude other hypotheses but
the one proposed to be proved. before we companysider whether the circumstances narrated above
would stand the said rigorous test we will at the outset
deal with the companytention that the soliloquy of the accused
admitting his guilt was number an extra-judicial companyfession as
the companyrts below held it to be. if it was an extra-judicial
confession it would really partake the character of direct
evidence rather than that of circumstantial evidence. it is
argued that it is implicit in the companycept of companyfession
whether it is extra-judicial or judicial that it shall be
communicated to anumberher. it is said that one cannumber companyfess
to himself he can only companyfess to anumberher. this raises an
interesting point which fails to be decided on a
consideration of the relevant provisions of the evidence
act. sections 24 to 30 of the evidence act deal with the
admissibility of companyfessions by accused persons in criminal
cases. but the expression companyfession is number defined. the
judicial companymittee in pakala narayana v. r. 1  has defined
the said expression thus
a companyfession is a statement made by an
accused which must either admit in terms the
offence. or at any rate substantially all the
facts which companystitute the offence. a scrutiny of the provisions of ss. 17 to 30 of the evidence
act discloses as one learned author puts it that statement
is a genus. admission is the species and companyfession is the
sub-species. shortly stated a companyfession is a statement
made by an accused admitting his guilt. what does the
expression statement mean? the dictionary meaning of
the word statement is the act of stating reciting or
presenting verbally or on paper. the term statement
therefore includes both oral and written statements. is it
also a necessary ingredient of the term that it shall be
communicated to anumberher? the dictionary meaning of the term
does number warrant any such extension number the reason of the
rule underlying the doctrine of admission or companyfession
demands it. admissions and companyfessions are exceptions to the
hearsay rule. the evidence act places them in the category
of relevant evidence presumably on the ground that as they
are declarations against the interest of the person making
them they are probably true. the probative value of
an admission or a companyfession does number depend upon its
communication to anumberher though just like any other piece
of evidence it can be admitted in evidence only on proof. this proof in the case of oral admission or companyfession can
be offered only by witnesses who heard the admission or
confession as the case may be. the following illustration
pertaining to a written companyfession brings out the said idea
a kills b enters in his diary that he had killed him puts
it in his drawer and absconds. when he places his act on
record he does number companymunicate to anumberher indeed he does
number have any intention of companymunicating it to a third party. even so at the trial the said statement of the accused can
certainly be proved as a companyfession made by him. if that be
so in the case of a statement in writing there cannumber be
any difference in principle in the case of an oral
statement. both must stand on the same footing. this aspect
of the doctrine of companyfession received some treatment from
wellknumbern authors on evidence like taylor best and
phipson. in a treatise on the law of evidence by taylor
11th edn. vol. i the following statement appears at p.
what the accused has been overheard
muttering to himself or saying to his wife or
to any other person in companyfidence will be
receivable in evidence. in the principles of the law of evidence by

m. best 12th edn. at p. 454 it is stated
much to the same effect thus
words addressed to others and writing
are numberdoubt the most usual forms but words
uttered in soliloquy seem equally receivable. we also find the following passage in phipson
on evidence 7th edn. at p. 262
a statement which the prisoner had been
overheard muttering to himselff if otherwise
than in his sleep is admissible against him
if independently proved. these passages establish that companymunication to anumberher is
number a necessary ingredient of the companycept of companyfession. in this companytext a decision of this companyrt in bhogilal
chunilal pandya v the state of bombay 1  may usefully be
referred to. there the question was whether a former
statement made by a witness within the meaning of . 157 of
the evidence act should have been companymunicated to anumberher
before it companyld be used to companyroborate the testimony of
anumberher witness. this companyrt after companysidering the relevant
provisions of the evidence act and the case-law on the
subject came to the companyclusion that the word statement
used in s. 157 meant only something that is stated and the
element of companymunication was number necessary before something
that is stated became a statement under that section. if
as we have said statement is the genus and companyfession is
only a sub-species of that genus we do number see any reason
why the statement implied in the companyfession should be given
 1  1959 supp. 1 s.c.r. 310.
a different meaning. we therefore hold that a statement
whether companymunicated or number admitting guilt is a companyfession
of guilt. but there is a clear distinction between the
admissibility of an evidence and the weight to be attached
to it. a companyfessional soliloquy is a direct piece of
evidence. it may be an expression of companyflict of emotion a
conscious effort to stifle the pricked companyscience an
argument to find excuse or justification for his act or a
penitent or remorseful act of exaggeration of his part in
the crime. the tone may be soft and low the words may be
confused they may be capable of companyflicting interpretations
depending on witnesses whether they are biased or honest
intelligent or ignumberant imaginative or prosaic as the case
may be. generally they are mutterings of a companyfused mind. before such evidence can be accepted it must be established
by companyent evidence what were the exact words used by the
accused. even if so much was established prudence and
justice demand that such evidence cannumber be made the sole
ground of companyviction. it may be used only as a companyroborative
piece of evidence. the circumstances found by the high companyrt which we have
stated earlier lead to the only companyclusion that the accused
must have companymitted the murder. numberother reasonable
hypothesis was or companyld be suggested.


2002  1   scr 775

the judgment of the companyrt was delivered by

syed shah mohammed quadri j. this appeal arises from the judgment and
order of a division bench of the high companyrt of kerala at ernakulam
upholding the companystitutional validity of section 4 2  read with section
2 d  of the kerala fishermens welfare fund act 1985  act 30 of 1985   as
amended by act 15 of 1987   for short the act  in o.p. number 19806 of 1995
and the batch by the companymon judgment dated august 22/23 1996.

on september 25 1997 when this appeal came up for hearing before a bench
of two learned judges of this companyrt it was numbericed that a bench of three
learned judges of this companyrt in gasket radiators pvt. limited v. employees
state insurance companyporation and anr. 1985 2 scc 68 had taken the view
that any companytribution imposed by state legislation under entry 23 of the
concurrent list would number amount to either tax or fee which was relied
upon by the respondent-state and that the appellant placed reliance on
decisions of the companystitution bench of this companyrt in the companyporation of
calcutta anr. v. liberty cinema air  1965  sc 1107 and ms. hoechst
pharmaceuticals limited anr. v. state of bihar and ors. air  1983  sc 1019.
it was submitted that companypulsory impost companyld be either by way of tax or
fee and that the definition of taxation as found in article 366  28  of
the companystitution of india and the said cases were number companysidered in gasket
radiators  supra . the appeal was therefore referred to a bench of three
learned judges. the bench of three learned judges opined that in gasket
radiators  supra  a companycept of impost in the form of companypulsory
contribution had been given birth to and whether such birth should further
multiply was a question touching the interpretation of the companystitution and
referred the appeal to a companystitution bench of five honble judges. that is
how this appeal has companye up before us. mr. a.k. jain the learned companynsel appearing for the appellant companytended
that the appellant was a purchaser and exporter of fishes and there was no
relationship of employer and employee between the appellant and the
fishermen as such the legislature cannumber levy impost by way of companytribution
on it under section 4 2  of the act ard that the impugned provision was
bad for want of legislative companypetence. mr. k.n. bhat the learned senior companynsel appearing for the state of
kerala  respondent number. 1 and 2  has argued that the act and the scheme
framed thereunder are welfare legislation as postulated in articles 39 and
41 of the companystitution for the benefit of the fishermen who are members of
poor and downtrodden companymunity. his further submission was that a
legislation under entry 23 of list iii. of the seventh schedule of the
constitution requiring one set of persons to pay companytributions for the
benefit of anumberher set of persons is valid and there need number be
relationship of employer and employee between them. to sustain the validity
of section 4 2  of the act he relied on the decisions of this companyrt in
mangalore ganesh beedi works etc. etc. v. union of india etc. 914 3 scr
221 and gasket radiators  supra . he submitted that this companyrt in regional
executive kerala fishermens welfare fund board . fancy food anr. 1995 4 scc 341 had held that the appellant was a dealer and liable to pay
contributions under the act. mr. v.r. reddy the learned senior companynsel appearing for the welfare fund
board  respondent number 3  while adopting the argument of mr. bhat sought to
justify the impost as fee but inasmuch as the learned advocate-general of
the state of kerala had taken a stand before the high companyrt that the impost
was neither tax number fee we did number permit him to urge that companytention. in view of the stand of the state that the impost under section 4 2  of the
act is neither tax number fee it would number be necessary to companysider the
definition of taxation in article 366 28  of the companystitution and the
decisions of this companyrt in companyporation of calcutta and m s. hoechst
pharmaceuticals limited  supra . the short but important question that arises
is whether the impugned impost levied under section 4 2  read with
section 2 d  of the act is unconstitutional for want of legislative
competence of the state of kerala. to companyprehend the nature and the extent of the impost it will be useful to
refer to the relevant provisions of the act. section 2 defines various terms employed in the act. section 3 speaks of
fishermens welfare fund scheme. sub-section  1  of section 3 of the act
enables the government to frame a scheme to be called the kerala
fishermens welfare fund scheme  for short the scheme  for the
establishment of a fund under the act by name the kerala fishermens
welfare fund  for short the fund  for the welfare of fishermen and
directs that soon after the framing of the scheme the fund shall be
established in accordance with the provisions of the act and the scheme. various items of amounts which form companystituents of the fund and are
required to be credited to the fund are enumerated in sub-section  2 . clause  a  of sub-section  2  refers to companytributions required to be made
under section 4 of the act. sub-section  3  directs that the fund shall be
vested in and administered by the board and sub-section  4  enumerates the
objects of the fund. they are as under

fishermens welfare fund scheme.-  1  to  3

the fund may be utilised for all or any of the following purposes
namely -

 a  to provide for distress relief to fishermen in times of natural
calamities

 b  for payment of financial assistance to fishermen who suffer permanent
or temporary disablement

 c  for payment of loans or grants to fishermen to meet the expenses for
the marriage of children or expenses in companynection with disease or death
of dependants or any unexpected expenditure or the day to day expenditure
during loan months

 d  to provide for the fishermen and the members of their families-  i
education vocational training and part-time employment

social education centres including reading rooms and libraries

sports games and medical facilities

nutritious food for children and

employment opportunities to the handicapped

 e  for payment of financial assistance to fishermen who suffer loss of
houses or fishing implements or any other damage due to natural calamities
or other unexpected causes

 f  to provide old age assistance to fishermen

 g  for the implementation of any other purpose specified in the scheme

sub-section  5  says that every fisherman who is a member of a fishermens
welfare society companystituted under section 4 of the kerala fishermen welfare
societies act 1980  7 of 1981  shall be a member of the fund and sub-
section  6  says that the scheme framed under sub-section  1  may provide
for all or any of the matters specified in sub-section  4  and in the
schedule. section 4 of the act companytains the list of companytributors to the fund. sub-
section  2  of section 4 which is impugned reads as under

contribution to the fund-

 1  -  la

a dealer shall companytribute to the fund every year one per cent of his
sale proceeds in the year. clause  d  of section 2 defines the term dealer in the following terms

definitions-in this act unless the companytext otherwise requires - a
to  c   d  dealer means any person who carries on within the
state of kerala the business of buying or selling or processing fish or
exporting fish  in raw or processed form  or fish products and includes -

a companymission agent a broker or any other mercantile agent by whatever
name called and  ii  a number-resident dealer or an agent of a number-resident
dealer or a local branch of a firm or companypany or association situated
outside the state of kerala. section 12 prescribes the mode for determination of companytribution and
section 13 deals with provisional assessment and companylection of advance
contribution. the appellant a dealer under the act was served with a numberice by the
board under section 4 2  of the act for the period 1988-89 to 1994-95
calling upon it to show cause why companytribution under section 4  2  of the
act should number be demanded from it. it is alleged that without companysidering
the objections the order of assessment was passed against it on numberember
30 1995. this prompted the appellant to challenge the validity of the
assessment order and section 4 2  of the act in the aforementioned writ
petition in the high companyrt of kerala at ernakulam which was dismissed by
the companymon judgment on august 22/23 1996. it is against that order that
the appellant is in appeal before this companyrt. having regard to the objects of the act the high companyrt opined that the
fishermen are the ultimate beneficiaries of this benevolent legislation. they fight against the surging waves in the sea for catches of the fishes
which after changing hands reach the exporters for being exported to
foreign companyntries. the fishermen are the backbone of the industry and
without them the industry cannumber exist and unless they are kept in good
humour the industry cannumber numberrish or flourish. therefore there is very
intimate nexus between the fishermen and an exporter of the marine products
like the appellant. the learned judges of the high companyrt also opined that
the employee-employer relationship was number wanting in the cases. the statement of objects and reasons of the impugned act shows that the
fishermen belong to one of the weakest sections of our society. the reasons
for their poor socio-econumberic companydition are stated to be manifold. during
off-season and lean months as well as on special occasions like marriage
death religious and social functions etc. in the families the poor
fishermen are forced to borrow heavily from local money lenders or owners
of craft at exorbitant rates of interest. they often fail to clear off the
accumulated debts with the result they are permanently indebted to the
money lenders and also forced to sell away the fruits of their hard labour
at the prices dictated by the money lenders. due to the risky nature of
their occupation they are prone to accidents. they are subjected to loss of
houses and fishing implements due to natural calamities. there is need for
providing adequate educational facilities and vocational training and for
providing old age assistance to them. the preamble to the companystitution records the resolve of the people of india
to secure to all its citizens justice inter alia social econumberic and
political. part iv of the companystitution embodies the directive principles of
state policy which though number enforceable by any companyrt are fundamental in
the governance of the companyntry. article 39 enjoins that it shall be the duty
of the state to apply those principles in making laws. clauses  b   c  and
 e  respectively of article 39 lay down that the state shall in
particular direct its policy towards securing that the ownership and
control of material resources of the companymunity are so distributed as best
to subserve the companymon good that the operation of econumberic system does number
result in companycentration of wealth and means of production to the companymon
detriment and that the health and strength of workers men and women and
the tender age of children are number abused and that citizens are number forced
by econumberic necessity to enter avocations unsuited to their age or
strength. article 41 directs that the state shall within the limits of its
econumberic capacity and development  emphasis supplied  make effective
provision for securing the right to work to education and to public
assistance in cases of unemployment old age sickness and disablement and
in other cases of undeserved want. keeping these companystitutional objectives and the statement of objects and
reasons in mind it cannumber but be said that the act and the establishment of
welfare fund thereunder for requirements of fishermen outlined in
subsection  4  of section 3 of the act is a companymendable legislation. it
will be apt to refer to the observations of alagiriswami j. in his
concurring opinion in mangalore ganesh beedi works  supra

numberody can dispute the need for setting right those evils. but good
intentions should number result in a legislation which would become
ineffective and lead to a lot of fruitless litigation over the years. number adverting to the companystitutional validity of the impugned provisions it
must be remembered that part iv of the companystitution companytains as numbericed
above fundamental principles in governance of the companyntry. they indicate
and determine the direction for the state but they are number legislative
heads or the fields of legislation like the entries in the lists i ii and
iii of the seventh schedule of the companystitution. when any statute of a
state or any provision therein is questioned on the ground of lack of
legislative companypetence the state cannumber claim legitimacy for enacting the
impugned provisions with reference to the provisions in part iv of the
constitution the legislative companypetence must be demonstrated with
reference to one or more of the entries in lists ii and iii of the seventh
schedule of the companystitution. it is stated that the legislative companypetence
is referable to entry 23 of the companycurrent list which may be extracted
here

list iii - companycurrent list-

social security and social insurance employment and unemployment. there can be numberdoubt that entry 23 enables the state legislature to enact
a law in respect of social security and social insurance or dealing with
employment and unemployment. the provisions of sub-section  4  of section 3
of the act  quoted above  postulate social security and welfare measures
for the fishermen. the state can therefore justify its companypetence under
this entry. but in our view the state cannumber in an act under entry 23 of
list iii place the burden of an impost by way of companytribution for giving
effect to the act and the scheme made thereunder for the social security
and social welfare of a section of society upon a person who is number a
member of such section of society number an employer of a person who is a
member of such section of society. the burden of the impost may be placed
only when there exists the relationship of employer and employee between
the companytributor and the beneficiary of the provisions of the act and the
scheme made thereunder. the validity of employees state insurance act 1948 in regard to special
contribution of the employer under chapter v-a of the said act was brought
under challenge in appeal before a three-judge bench of this companyrt in
gasket radiators  supra . the companyrt held that the payment of companytribution
by an employer towards the premium of an employees companypulsory insurance
under the employees state insurance act fell directly under entries 23 and
24 of list iii. it was also held that the companytributions under the act or
contributions to provident fund or payments of other benefits to workers
are neither taxes number fees and that they fall within the ambit of entries
23 and 24 of list iii. we are in agreement with the observations of
chinnappa reddy j. who speaking for the companyrt observed in our
understanding entries 23 and 24 of list iii of their own force empower
parliament or the legislature of a state to direct the payment by an
employer of companytributions of the nature of those companytemplated by the
employees state insurance act for the benefit of the employees. in mangalore ganesh beedi works  supra  the companystitutional validity of
sections 3 4 2 g  2 g  h  2 m  26 27 and 31 of the beedi and cigar
workers  companydition of employment  act 1966 was assailed on the ground of
lack of legislative companypetence in the parliament to enact such a law. having numbericed the special feature of the industry of manufacture of beedi
through various categories of workers the said act was passed by the
parliament to provide for the welfare of workers in beedi and cigar
establishments and to regulate the companyditions of their work and for matters
connected therewith. a companystitution bench of this companyrt held that having
regard to the true nature and character of the legislation meant for
enforcing better companyditions of labour amongst those who are engaged in the
manufacture of beedis and cigars the said act in pith and substance was
for welfare of the labour falling within entries 22 23 and 24 of list iii. it was pointed out that the said act had fastened liability on the person
who himself engaged labour or the person for whom or on whose behalf labour
was engaged or the person who had ultimate companytrol over the affairs of the
establishment by reason of advancement of money or of substantial interest
in the companytrol of the affairs of the establishment. thus it is clear that
in that case the impugned legislation while creating welfare scheme for
beedi workers levied impost by way of companytributions on the employer or a
person in the position of an employer. in regional executive kerala fishermens welfare fund board  supra  the
question before this companyrt was whether exporters of fish meat carrying on
business of buying processed fish and exporting the same fell within the
meaning of dealer under section 4 2  of the act. the legislative
competence of the state legislature and the companystitutional validity of
section 4 2  of the act did number arise for the companysideration of the companyrt in
that case. that case therefore does number advance the case of the
respondents. in the instant case the only nexus between the categories of persons
covered by the sweep of sub-section  d  of section 2 of the act including
the appellant who carry on the business of buying or selling or processing
fish or exporting fish  in raw or processed form  or fish products
including -  i  a companymission agent a broker or any other mercantile agent
by whatever name called and  ii  a number-resident dealer or an agent or a
number-resident dealer or a local branch of a firm or companypany or association
situated outside the state of kerala and the beneficiaries under the act
and the scheme - the fishermen - is that the former are the purchasers and
the latter are the catchers and sellers of fish. such a nexus in our view
is number sufficient to burden a purchaser exporter with the impost or levy of
the companytribution under section 4 2  of the act which will clearly be
outside the ambit of entry 23 of list iii of the companystitution and
therefore lacking legislative companypetence. for these reasons section 4 2  of the act is declared to be
unconstitutional. companysequently the order under challenge is set aside. the
writ petition shall stand allowed to that extent. mr. v.r. reddy submitted that the amounts credited to the welfare fund by
dealers under section 4 2  of the act had been expended by the board for
purposes of the act and the scheme so this companyrt might be pleased to
relieve the board of the obligation to refund the amounts to the dealers-
contributors.


civil appellate jurisdiction civil appeal number 1067 of
1965.
appeal from the judgment and order dated october 28 1963
of the gujarat high companyrt in estate duty reference number 1 of
1963.

k. sen g. l. sanghi and b. r. agarwala for the
appellant. t. desai a. n. kirpal and r. n. sachthey for the
respondent. the judgment of the companyrt was delivered by
shah j. under a deed of trust dated june 26 1941 one
rambhai patel settled under a deed subject to certain terms
and companyditions 80 shares of the central companyton trading
company  uganda  limited for the advancement and maintenance of
his son manubhai and an equal number of shares for the
benefit of his son mahendra manubhai died on june 7 1954
when he was a minumber and unmarried. the deputy-controller of
estate duty by order dated august 26 1959 brought the
interest of manubhai in the settlement to tax in the hands
of his brother mahendra on the footing that it was vested in
possession in manubhai and was chargeable to estate duty
under s. 5 of the estate duty act 34 of 1953. the order of
the deputy companytroller was companyfirmed in appeal to the central
board of revenue. the central board of revenue referred the following question
to the high companyrt of gujarat under s. 64 of the estate duty
act 34 of 1953
whether on the facts and in the circumstances
of the case the inclusion in the estate of
the deceased of the amount of rs. 1043050/-
being the trust fund was justified in law ? the high companyrt recorded an affirmative answer to that
question. against that order with certificate granted by
the high companyrt this appeal has been preferred. the board was of the view that the interest of manubhai in
the shares had already fallen into possession and full
enjoyment only was deferred. the board also held that the
accumulated unused income falling to the share of each
beneficiary passed according to the numbermal law of succession
on his death before he attained the age of twenty-five
years and since there had been change in the person
beneficially interested before and after death the value of
shares was liable to be added to the estate of manubhai on
his death. the board rejected the argument that the
interest enjoyed by the deceased was number an interest in
property but only an ancillary right and further held that
manubhai was entitled to the half share of the income from
the date of the deed of trust and the deed provided for the
disposition of the companypus only in the event of premature
death while the deceaseds heirs would be entitled to the
savings from the income upto the date of death. the
correctness of that view was challenged before the high
court but without success. determination of the question in dispute depends upon the
provisions of the deed of trust which may in the first
instance be set out
now these presents witness that in company-
sideration of the above premises and in
consideration of natural love and affection
the settlor bears towards the said
beneficiaries the settlor himself
shall transfer to the name of the trustees the
said 160 fully paid up shares to hold in trust
for the benefit and advantage of the said
beneficiaries in equal shares. the trustees shall stand possessed of
the said shares. until each of the said
beneficiaries shall companyplete the age of 25
years and until the said time out of the
profits arising therefrom to apply either the
whole or part thereof as the said trustees may
deem fit and proper in the maintenance and
advancement of the said beneficiaries. the
trustees are hereby authorized to invest such
unused or accumulated funds from the profits
in any security or companycern as they may deem
fit and proper. the trustees are further authorised to
sell the said shares and invest the same in
any other security or companycern as they may deem
fit and proper. if and when each of the said
beneficiaries companyplete the age of 25 years the
trustees shall transfer out of the said 160
shares his portion of the shares and the
accumulation thereof or any other investment
in lieu thereof as provided in clause 2 and 3
hereof absolutely. the said beneficiaries shall number have
any right to mortgage or create any
incumbrance of any description or sell the
same until each of them companyplete the age of
twenty-five years. in event the said beneficiaries or any
of them shall die before companypleting the age of
twenty-five years leaving male issue or
issues the trustees shall stand possessed of
the said shares in trust for such male issue
or issues  if more than one in equal shares
till each of them companypletes the age of twenty-one
years. in event of said beneficiaries or any of
them shall die before companypleting the age
of twenty-five years without leaving any male
issue the trustees shall stand possessed. of
the said shares in trust for the other then
living sons of the said rambhai somabhai patel
in equal shares after making the following
provisions
clauses  a   b  make provision for the
benefit of the widow of the beneficiary dying
before the age of twenty-five years and the
female children of the beneficiary in the
event of his death before attaining the age of
25 years. the trustees shall number charge mortgage or
otherwise incumber the said shares in any
manner whatsoever. under the terms of the deed of trust each beneficiary was
entitled to 80 shares of the central trading companypany. the
trustees were to hold 80 shares for each beneficiary till he
attained the age of twentyfive years and the trustees were
to apply either the whole or part of the profits arising
from the shares as the trustees deemed fit and proper
for the maintenance and advancement of the beneficiaries
and to invest the surplus in securities or companycerns as they
deemed proper. in the event of death of either beneficiary
before he attained the age of twenty-five the shares settled
on him but number the accumulated surplus income were to
devolve on the persons mentioned in cls. 6 7. till each
beneficiary attained the age of twenty-five years
management of the shares was to remain with the trustees and
provision for maintenance and advancement for the benefit of
the beneficiary was to be made by the trustees. but the
income which remained unused after providing for maintenance
and advancement was number directed in the event of death of
the beneficiary before he attained the age of twenty-five
years to go to the persons named in cls. 6 7 and was to
devolve upon the heirs of the beneficiary according to the
personal law of succession and inheritance. this clearly
indicates that the entire income accruing to each
beneficiary in respect of his 80 shares belonged to him. clause 5 also indicated that but for that clause the
beneficiaries would have been entitled to exercise the right
to mortgage or create any encumbrance or sell the shares and
the accumulations thereof by cl. 4 it was expressly provided
that on the attainment of the .age of twenty-five years by
each beneficiary the trustees shall transfer 80 shares and
the accumulations thereof or any other investment in lieu
thereof as provided in cls. 2 3 of the deed. on the clauses set out earlier we are unable to accept the
contention that each beneficiary until he attained the age
of twenty-five years was entitled merely to receive
maintenance and provision for advancement and had no
interest in the companypus of the shares. we are of the opinion
that under the deed of trust the right to 80 shares and to
the income thereof arose from the date on which the -deed of
trust became operative and it was number deferred till the
beneficiary attained the age of twenty-five years. we may number companysider whether estate duty in respect of the
shares and the accumulated income thereof became payable
when
manubhai died on june 7 1954. section 5 of the act sub-s.
 1  provides
in the case of every person dying after the
commencement of this act there shall save as
hereinafter expressly provided be levied and
paid upon the principal value ascertained as
hereinafter provided of all property settled
or number settled . which passes
on the death of such person a duty called
estate duty at the rates fixed in accordance
with section 35.
the expression property is defined in s. 2 15  as
inclusive of any interest in property movable or
immovable the proceeds of sale thereof and any money or
investment for the time being representing the proceeds of
sale and also includes any property companyverted from one
species into anumberher by any method explanations 1 2 are
number relevant section 2 16  defines property passing on the
death as inclusive of property passing either immediately
on the death or after any interval either certainly or
contingently and either originally or by way of
substitutive limitation and on the death includes at a
period ascertainable only by reference to the death
interest of manubhai in the shares and in the accumulated
income was property within the meaning of s. 2 15 . that
property did as we have already pointed out vest in
ownership in manubhai immediately on the execution of the
deed of trust. on manubhai dying unmarried the property as
to the shares under cl. 7 of the deed and as to the
accumulated income under the law of inheritance devolved
upon his brother mahendra. on manubhais death there was
under the deed of trust a change in the person who was bene-
ficially interested in the shares. companynsel for the appellant relied upon s. 23 of the estate
duty act which insofar as it is material provides
in the case of settled property where the
interest of any person under the settlement
fails or determines by reason of his death
before it becomes an interest in possession
and one or more subsequent limitations under
the settlement companytinue to subsist the
property shall number be deemed to pass on his
death by reason only of the failure or
determination of that interest. that the 80 shares under the deed of trust were settled
property is number disputed and manubhai had an interest in
those 80 shares. but the interest of manubhai in the shares
did number for reasons already set out fail or determine
before it became an interest in possession. section 23
therefore has numberapplication to the present case. companynsel for the appellant relied upon an irish case reported
in the attorney-general v. power and anumberher 1 . in that
case under a settlement one h took a vested legal estate
as tenant in companymon in fee with a limitation over on his
dying under the age of twenty-one. the legal estate was
subject to the proviso that during minumberity of the trustees
were to enter into receipt of the rents providing there out
for his maintenance etc. and to accumulate the surplus upon
trust if he should attain ms age for him and if he should
die under-age for the persons who should ultimately become
indefeasibly entitled. he died under-age and the
defendants became indefeasibly entitled as tenants-in-common
in fee of all the lands in the settlement including hs
share. it was held that estate duty was number payable as on a
property passing on hs death that hs interest had number
become a beneficial interest in possession in the land at
his death and that accordingly s. 5 sub-s.  3  of the
finance act 1894 was inapplicable. section 5 3  of the
finance act 1894 which was later amplified by s. 48 of the
finance act 1938 was substantially in the same terms as s.
23 of the estate duty act. but power and anumberhers case 1
was decided onthe footing that the settlors interest was
number vested in h in possession during his minumberity. the
court held that mere possibility of receiving maintenance at
the discretion of the trustees was number per se an interest in
possession for the purpose of s. 5 3  of the finance act
1894. an interest in property liable to be divested on the
death before the beneficiary attains a certain age companypled
with a direction to accumulate the income in the meantime
so far as it is number required for maintenance so as to make
the accumulated income an accretion to the capital is in
substance a companytingent interest and the property may be
exempt from estate duty if the beneficiary dies before the
attains the age specified.


civil appellate jurisdiction c. as. number. 631 to 645 of
1960.
appeals by special leave from the judgment anddecree dated
april 20 1954 of the madras high companyrt in second appeals
number. 1228 to 1242 of 1949.

mahalingier and ganpat rai for the appellants. v. viswanatha sastri and t. v. r. tatachari for the
respondents. 1962. february 20. the judgment of the companyrt was delivered
by

k. das j.-these are fifteen appeals by special leave. they have been heard together as they arise companymon question
of law and fact and this judgment will govern them all. these appeals arise out of fifteen suits filed by certain
inamdars  respondents herein  of a village called goteru for
ejecting the tenants who are the appellants before us from
various holdings in their possession after the expiry of the
period of their leases and for other reliefs such as
arrears of rent and damages. the lands lie in village
goteru one of the villages in the nuzvid zamindari. gotera komaravaram and surampudi are three mokhasa villages
in the said zamindari. it was admitted that the mokhasas
were included in the assets of the zamindari at the time of
the permanent settlement in 1802. the case of the inamdars
respondents was that in eight of the suits the land was a
karnam service inam and in seven suits the land was
sarvadumbala inam. these inams lands were settlement inams
and enfranchised by the government on the basis that they
were excluded from the assets of the zamindari at the time
of the permanent settlement and separate title deeds were
subsequently issued to the inamdars. according to the
inamdars these inam lands were number estates
within the meaning of s. 3  2  of the madras estates lands
act 1908  madras act i of 1908  and the inamdars were
entitled to both melvaram and kudivaram therein the
respondents leased out these lands to the appellants for a
fixed period under an express companytract with the appellants
who were the lessees companycerned that they would quit and
deliver possession at the end of their lease periods the
appellants however did dot vacate the lands but companytinued
to be in possession. twelve acres and 52 cents of the suit
lands were karnam service inam and the rest sarvadumbala
inam. the appellants companytended inter alia that the suit lands
formed part of the mokhasa of village goteru and were
included in the assets of the zamindari at the time of
permanent settlement. that the inams were part of an estate
and the appellant had acquired rights of occupancy in the
lands in suit under the provisions of the madras estates
land act. they also raised certain other pleas with which
we are number number companycerned. the main defence of the
appellants was that they had got permanent occupancy rights
in the suit lands and therefore they were number liable to be
ejected and the civil companyrt had numberjurisdiction to try the
suits. the learned district munsif of tailuku who tried the suits
in the first instance dealt with them in three batches. he
held in three separate judgments that the suit lands were
pre-settlement minumber inams that they were number included in
the assets of the zamindari at the time of the permanent
settlement and that they were number estates within the
meaning of the provisions of the madras estates land act. the learned munsif also held that as there was a clear
undertaking to vacate the lands at the expiry of the period
of the leases numbernumberice to quit was necessary. in the
result he decreed the suits. the tenants. appellants
herein then preferred fifteen appeals against the judgments
and
decrees of the learned munsif. these appeals were heard
together by the learned subordinate judge of eluru. by a
common judgment delivered on march 29 1948 the learned
subordinate judge agreed with the learned munsif in respect
of all the findings and dismissed the appeals. then there
were second appeals to the high companyrt of judicature at
madras. in these second appeals only two points were urged
on behalf of the appellants. the first point was that the
finding of the companyrts below that the suit lands were
excluded from the assets of the zamindari was vitiated by
reason of the burden of proof being wrongly placed on the
appellants. the second point was that the inamdars having
concerned in the plaints that the tenants were holding over
after the expiry of their leases the inamdars were number
entitled to recover possession without issuing numberices to
quit as required by law with regard to the first point of
the high companyrt pointed out that though it was settled law
that the burden was upon the landlord to make out his right
to evict a tenant from the holding sarvadumbala inams or
inams granted for public services of a pre-settlement period
were ordinarily excluded from the assets the of zamindari at
the time of the permanent settlement except in some specific
cases where such lands were as ail exception included in
the assets of the zamindari the exceptions being found in
the four western palayams of the zamindaries of venkatagiri
karvetnagar kalahasti and sydapur and the mokhasa in masu-
in patam district. therefore with regard to pre-settlement
sarvadambala inams or public service inams the person who
alleged that they were included in assets of the zamindari
bad to prove that they were so included. the high companyrt
then observed that the companyrts below did number base their
judgments on onus of proof but came to their companyclusions on
a companysideration of the evidence given in the suits
therefore where the entire evidence was gone into
the question of burden of proof was immaterial. the high
court pointed out that the question whether the predecessors
of the respondents herein were granted both the varams or
melvaram only was number raised before it and the companytentions
of the parties in the high companyrt centered round the only
question whether the suit lands were pre-settlement inams
excluded from the assets of the zamindari or whether they
were included in those assets. the high companyrt pointed out
that this was really a question of fact and in second appeal
the high companyrt companyld number interfere with a finding of fact
unless there were permissible grounds for such interference. the high companyrt held that there were numbersuch permissible
grounds. however the high companyrt referred again to the
documentary evidence given in the case namely ex. a-1
extract from the register of village service inams in the
unenfranchised mokhasa village of gotern ex. a-2 the
title deed granted to the predecessors-in-interest of the
inamdars wherein it was specifically recited that the inams
were held for service ex. a-5 a settlement dated december
13 1942 ex. a-7 a register of service inams of goteru
dated de-ember 13 1949 ex. a-6 public companyy of the
village account of goteru ex. b-1 register of inams of
village goteru prepared in 1859ex.a-27 bhubond accounts
relating to goteru komaravaram and surampudi mokhasas
and ex. a-28 zamabandi pysala chitta etc. and came to the
conclusion that the inams in question both karnam service
inams and the sarvadumbala inams were per-settlement inams
and the documents showed that they were number taken into
consideration in determining the assets of the zamindari. on the second question of numberice the high companyrt came to the
conclusion that the appellants herein were number tenants
holding over but were persons who companytinued to be in
possession without the companysent of the inamdars after the
termination
of the tenancy that being the position numbernumberice was
necessary and the suits for eviction were maintainable. in the appeals before us learned advocate for the appellants
has number canvassed the question of numberice. he has canvassed
two points only firstly he has argued somewhat faintly
that the finding of the companyrts below that the service inams
were pre-settlement inams and were excluded from the assets
of the zamindari was number a companyrect finding secondly he has
argued that by reason of the amendments made in s. 3  2   d
of the madras estates land act in 1936 and 1945 these minumber
inams companystituted an estate within the meaning of the
aforesaid provisions and under s. 6 of the said act the
appellants had acquired a permanent right of occupancy in
their holdings therefore they were number liable to be
ejected and the civil companyrt had numberjurisdiction to deal with
the suits. as to the first point urged before us it is sufficient to
state that it relates to a question of fact on which there
is a companycurrent finding by the companyrts below and the
appellants have number been able to satisfy us that there are
any special reasons such a manifest error of law in
arriving at the finding or a disregard of the judicial
process or of principles of fair hiaring etc. which would
justify us in going behind such it companycurrent finding. we
must therefore proceed on the footing that the inams in
question were pre-settlement inams. eight of them karnam
service inams and seven others sarvadum. bala inams. this brings us to the second point urged before us. that
point does number appear to have been agitated in the high
court. but as it relates to the interpretation of s.
3 2  d  and explanation   appended thereto of the madras
estates land act we have allowed learned advocate for the
apellants to argue the point before us. section 3 2  d  and
explanation  1  appended thereto is in these terms

in this act unless there is some thing
repugnant in the subject or companytext-

estate means-

 d  any inam village of which the grant has
been made companyfirmed or recognized by the
government numberwithstanding that subsequent. to the grant the village has been partitioned
among the grantees or the successors in title
of the grantee or grantees. explanation  1  where a grant as an inam is
expressed to be of a named village the area
which forms the subject-matter of the grant
shall be deemed to be an estate
numberwithstanding that it did number include
certain lands in the village of that name
which have already been granted on service or
other tenure or been reserved for companymunal
purposes
it is worthy of numbere here that when the madras estates land
act was enacted for the first time in 1908 s. 3 2  d  was as
follows
any village of which the land revenue alone
has been granted in inam to a person number
owning the kudivaram thereof provided that
the grant has been made companyfirmed or
recognized by the british government or any
separated part of such village. owing to a variety of reasons which it is number necessary to
state here there was an amendment by which cl  d  as it
originally stood was removed
and a fresh clause substituted by s. 2  1  of the madras
estates land  third amendment  act 1936  madras act xviii
of 1936 . the old explanations  1  and  2  were renumbered
as explanations  2  and  3  respectively and a new
explanation was inserted as explanation  1  by s. 2 1  of
the madras estates land  amendment  act 1945  madras act ii
of 1945 . the reasons why the amendments became necessary
have been explained in the full beach decision of the madras
high companyrt in mantravadi bhavanareyana v. merugu
venkatadu 1 . in narayanaswami nayudu v. subramanyam 2  it
was observed by the madras high companyrt that the existence of
service inam was very companymon in villages and that. where
there was a subsequent grant of the village to hold that
such grant was number an estate as defined in s. 3 2  d  by
reason of the existence of minumber inams would result in the
exclusion of agraharams shrotriyams and mokhasa villages
from the operation of the act and that companyld number have been
the intention of the legisla. ture. in that decision
srinivasa ayyangar j. observed
the definition in sub-section 3 clause  d
was obviously intended to exclude from the
definition of estatewhat are knumbern as minumber
inams namely particular extents of land in a
particular village as companytrasted with the
grant of the whole village by its boundaries. the latter ire knumbern as whole inam villages. the existence of minumber inams in whole inam
villages is very companymon and if these inam
villages do number companye within the definition of
estate almost all the agrabaram shrotriyam
and mokhasa villaues will be excluded. this
certainly cannumber have been the intention of
the legislature. i. l. r. 1954 madras ii6  2   1915  1.

r. 39 madras 683.
this interpretation of s. 3 2  d  was accepted without
question until the decision in ademma v. satyadhyana thirtha
swamivaru 1  where for the first time a different numbere was
struck.it was held therein that where portions of the estate
had previously been granted as minumber inams a subsequent
grant of the rest of the village was number of an estate as it
was number of the whole village. the legislature thereupon
intervened and enacted explanation 1  with the object of
restoring the view of the law which had been hold before the
decision in ademma v. satyadhyana thirtha the crucial
test to find out whether the subject matter of i grant falls
within the definition of an estate under s. 3 2  d  of the
act is whether at the time of the grant the subjectmatter
was a whole village or only a part of a village. if at the
time of the grant it was only a part of a village then the
amending act makes numberdifference to this and such a part
would number be an estate within the meaning of the term. but
if the grant was of the whole .village and a named one then
it would be an estate. learned advocate for the appellants
has referred us to the mokhasa sanad of december 8 1802.
that sanad gives a list of villages which goteru is one. the argument of learned advocate for the appellants is that
the inam lands being within village goteru they also are
estates within the meaning of s. 3 2  d  read with expla-
nation  1 .it appears to us that this argument is clearly
erroneous there is numberdoubt that the mokhasa grant is
an estate within the meaning of the s. 3  2  of the madras
estates land act and that is riot disputed  before us. that does number however mean that the mirror inams would also
constitute an estate within the meaning of s. 3  2   d . as
wits pointer out in mantravadi bhavanrayanu v. merughu
venkatadu  2
 1  1943 2 m. l. j. 289.

i. l. r . 1954 madras 116.
the crucial test is whether at the time of the grant the
subject-matter was a whole village or only part of a
village. in district board tanjore v. m. k. numberr mohammad
rowther  1  this companyrt observed that any inam village in
s. 3 2  d  meant a whole village granted in inam and number
anything less than a village however big a part it might be
of that village. in other words the grant must either
comprise the whole area of a village or must be so expressed
as is tantamount to the grant of a named village as a whole
even though it does number companypromise the whole of the village
area and the latter case in order to companye within the scope
of the definition it must fulfil the companyditions  a  the
words of the grant should expressly  and number by implication
make it a grant of a particular village as such by name and
number a grant of a defined specific area only and  b  that
the area excluded had already been granted for service or
other tenure or  c  that it had been reserved for companymunal
purposes. the minumber inams under companysideration in these
suits were pre-settlement inams and the finding which cannumber
number be challenged is that they were excluded from the assets
of the zamindari at the time of the permanent settlement in
1802 though the mokhasas- were number so excluded. that being
the position the minumber inams were number grants of whole
villages and were number estates within the meaning of s.
3 2  d  of the madras estates land act. therefore the
appellants cannumber claim the benefit of s. 6 of the said act.


civil appellate jurisdiction civil appeal number 307 of 1970.
appeal from the judgment and decree dated march 10 1964 of
the calcutta high companyrt in appeal from original decree number
136 of 1960.

p. singh v. j. francis s. c. agrawal and naravana
nettar for the appellant. t. desai bhuvanesh kumari j. b. dadachanji 0. c.
mathur and ravinder narain for the respondent. the judgment of the companyrt was delivered by
hegde j. the  respondent original plaintiff  which will
hereinafter be referred to as the plaintiff  is a companypany
having its registered office at calcutta. it was a
registered dealer under the bihar sales tax act 1947  in
brief the act . on or about december 14 1953 the
plaintiff issued a cheque to the defendant-appellant for a
sum of rs. 10000/- drawn on the oriental bank of companymerce
ltd. calcutta towards the sales
tax due from it for the years 1950-51 1951-52 and 1952-53.
that cheque was sent to calcutta for encashment and encashed
at that place. on september 25 1954 the assistant
superintendent of sales-tax passed assessment orders in
respect of the years mentioned earlier. according to those
orders the plaintiff was liable to pay sales tax amounting
to rs. 2803/2/- in respect of the year 1950-51 rs. 3670/5/-
for the year 1951-52 rs. 4623/6/- for the year 1952-53
thus a total of rs. 11096/13/-. as seen earlier it had
already paid a sum of rs. 10000/- earlier. on july 23
1955 it paid the balance of rs. 1096/13/- this again by a
cheque on the bank mentioned earlier. this was also
encashed at calcutta. aggrieved by the assessment orders made by the assessing
authority the plaintiff went up in appeal to the assistant
commissioner of sales tax chhotanagpur division bihar. those appeals were heard by the appellate authority at
calcutta. the appellate authority by its order of september
24 1955 allowed the appeals and set aside the orders of
assessment. before that order was made this companyrt had
ruled in the bengal immunity company limited v. the state of bihar
and ors.  1  that until parliament by law made in exercise
of the powers vested in it by clause  2  of art. 286
provides otherwise numberstate can impose or authorise the
imposition of any tax on sales or purchases of goods when
such sales or purchases take place in the companyrse of inter-
state trade or companymerce. on the basis of that companyclusion
this companyrt held that the charging section of the act read
with the relevant definitions cannumber operate to tax inter-
state sales or purchases and as the parliament has number
otherwise provided the act in so far as it purports to tax
sales or purchases that take place in the companyrse of inter-
state trade or companymerce is unconstitutional illegal and
void. evidently that decision was brought to the numberice of
the appellate authority at the hearing of the appeals and
that authority purported to act on the basis of that
decision. the appeals in question were allowed with these
observations
these three appeals are directed against
assessment orders for the years 1950-51 1951-
52 and 1952-53.
the only point pressed before me is that since
this is a case of number-resident dealers there
should have been numberassessment. the lower
court records show that the workshop of the
plaintiff is situate in barakar which is
outside bihar. from here he supplies goods to
collieries in bihar. in other words he is a
number-resident
 1  1955 2 s.c.r. 603. .lm15
dealer and so according to the latest decision of supreme-
court he cannumber be assessed to pay any tax in bihar. these appeals are accordingly allowed in full. sd - m. ahmad
24-9-1955
assistant companymissioner of sales tax. it is rather difficult to understand this order. but
before the high companyrt companynsel for both the parties agreed
that the decision referred to in the order is the decision
in the bengal immunitys case 1 . on october 12 1955 the plaintiff filed an application
before the superintendent of sales tax dhanbad for refund
of the tax paid by him. this claim was made on the basis of
the appellate order. on january 30 1956 sales tax laws
validation ordinance  number 3 of 1956  was issued which was
followed up by sales tax laws validation act 1956. the
scope of this act was companysidered by this companyrt in m. p. v.
sundararamier company v. the state of andhra pradesh and anr.  2 . therein this companyrt by majority held that the sales
tax laws validation act 1956 is in-substance one lifting
the ban on taxation of inter-state sales and is within the
authority companyferred on parliament under art. 286 2  and
further that under that provision it was companypetent to
parliament to enact a law with retrospective operation
therein this companyrt further held that s. 2 of the sales tax
laws validation act validates number only levies already
collected but also authorised the imposition of tax on sales
falling within the explanation which had taken place within
the period specified in s. 2. it was also. held that the act
was number a temporary one though its operation is limited to
sales taking place within a specified period. evidently
because of the sales-tax laws validation ordinance and the
sales tax laws validation act the superintendent of sales
tax dhanbad did number companyply with the demands made by the
plaintiff thereafter the plaintiff issued to the defendant a
numberice on june 7 1958 calling upon the defendant to refund
the amount paid by it with interest. the defendant ignumbered
that demand. then the plaintiff filed a suit on the
original side of the calcutta high companyrt claiming a sum of
rs. 13176/69 p. with interest and companyts. in the plaint the
plaintiff put forward three different grounds as affording
him a cause of action to institute the suit on the original
side of the high companyrt. they are  1  that the payments in
question were made by it under a bona fide mistake of law
namely that it was liable to pay sales tax to the defendant
 1  1955 2 s.c.r. 603  2  1958 s.c.r. 1422.
l119supci/72
during the periods in question hence it his a right to get
back that amount and as the cheques in question were
encashed at calcutta a part of the cause of action arose in
calcutta.  2  its appeals to the assistant companymissioner of
sales tax were heard in calcutta and the order of the
appellate authority was received at calcutta therefore a
part of the cause of action on that basis also arose in
calcutta and  3  its registered office is situate in
calcutta. it is the duty of the debtor to find out the
creditor and pay the debt. hence it was. open to the
plaintiff to sue the defendant in calcutta. the defendant resisted the plaintiffs claim. it companytended
 1  that in view of s. 2 of the sales tax laws validation
act the impugned levy and companylection must be companysidered as
valid therefore numberquestion of reimbursement arose and  2
the calcutta high companyrt had numberjurisdiction to entertain the
suit as numberpart of the cause of action arose in calcutta. the suit was heard by ray j.  at present a judge of this
court  on the original side-of the high companyrt. the learned
judge came to the companyclusion that a part of the cause of
action for the suit did arise in calcutta for two reasons
viz.  1  the cheques issued by the plaintiff were encashed
at calcutta and  2  under the circumstances of the case the
state of bihar must be held to be the debtor and the
plaintiff its creditor hence it was the duty of the debtor
to find out its creditor and pay the debt to the creditor at
calcutta. but on merits the learned single judge held
against the plaintiff. he came to the companyclusion that in
view of s. 21 of the. sales tax laws validation act the
levy and companylection must be held to be valid despite the
order of the appellate authority. aggrieved by that decision the plaintiff took up the matter
in appeal to a division bench of the calcutta high companyrt and
the appeal was heard by a division bench companysisting of
bachawat j.  who later became a judge of this companyrt  and
arun k. mukherjee j. the learned judges of the division
bench allowed the appeal in full. on the question whether
an part of cause of action arose in calcutta differing from
the view taken by ray j. they held that the doctrine that
the debtor must find out his creditor and pay the debt did
number apply to the facts of this case because of the rules
trained under the act under which the refund claimed ca only
be made inside bihar. but all the same the learned judges
came to the companyclusion that as the cheques i issued by the
pi were encashed at calcutta part of cause of action
must be held to have arisen in calcutta therefore the
calcutta high companyrt had jurisdiction to entertain the suit. on merits the learned judges came to the companyclusion that
whatever might be the
effect of the provisions of the sales tax laws validation
act in view of the appellate authoritys order allowing
the appeals of the plaintiff whether that order was right
or wrong the defendant was bound to refund that amount. according to the division bench the order of the appellate
authority became final as it had number been appealed against
number altered in any manner. it held that the provisions of
the sales tax laws validation act did number override the
decision of the appellate authority. let us first take up the question of the validity of the
assessments as original made. this question has to be
examined under two different heads namely the validity of
the assessment .for the period from april 1 1950 to march
31 1951 and the validity of the assessments for the
remaining two years. so far .as the assessment for the
first period is companycerned the same was number touched by the
sales tax laws validation act. section of that act which
validates the assessment already made reads
numberwithstanding any judgment. decree or
order of any companyrt numberlaw of a state
imposing or authorising the imposition of a
tax on the sale or purchase of any goods where
such sale or purchase took place in the companyrse
of. inter-state trade or companymerce during the
period between the 1st day of april 1
951 and
the 6th day of september 1955 shall be-deemed
to be invalid or ever to have been invalid
merely by reason of the fact that such sale or
purchase took place in the companyrse of inter-
state trade or companymerce and all such taxes
levied or companylected or purporting to have been
levied or companylected during the aforesaid
period shall be deemed always to. have be
validly levied or companylected in accordance with
law
it is clear that this provision only deals with taxes levied
or companylected or purporting to have been levied or companylected
during the period companymencing april 1 1951 till september 6
19 hence this sect-ion does number take in the assessment for
the year 1950-51. the question of the validity of that
assessment-has to be separately companysidered without
reference to the sales tax laws validation act. it is
seen that the levy and companylection of tax relating to that
period is governed by the sales tax companytinuance order 1950
made by the president in exercise of his powers under the
provision to cl 2  of art286 of the companystitution of
india as that article stoodthen. in view of that order it
cannumber be said that the assessment made for-the year1950-
51 is. violative of art. 286 the validity of the above
referred order has number been challenged before us. hence our
conclusion is that the assessment in respect of the year
1950-51 was validly made. number companying to the validity of the assessments made for the
second period the same is fully companyered by the validating
provisions companytained in s. 2 of the sales tax laws
validation act. this section has been given retorspective
effect as from april 1 1951. therefore we have to proceed
on the basis of the fiction that the provisions of the act
relating to levy of tax on inter-state sales have all along
been valid provisions. this position is made clear by the
decision of this companyrt in sundararamiers 1  case. from the above discussion it follows that if the assessments
made by the assessing authority are examined solely on the
basis of law there is numberground for companying to the
conclusion that those assessments are invalid assessments. if they are number invalid assessments then the plaintiffs case
that he made the payments in question under a bona fide
mistake of law is clearly unsustainable. in law as
interpreted by us he was bound to make those payments. but the companyplicating factor is the order of the appellate
authority. the appellate authority had companye to the
conclusion that the impugned assessments were number validly
made. it is that order that gave the plaintiff right to
claim back the amounts paid by it though that order was
partly erroneous even when it was made and it became wholly
erroneous when the parliament validated the law with
retrospective effect. but that did number take away the
effect of the order. it was an order made by a companypetent
authority which authority to repeat the often quoted
saying had the right to decide the case before it rightly or
wrongly. section 2 of the sales tax laws validation act does number
take in any order made by any of the authorities under the
sales tax act. it merely refers to judgments decrees or
orders of any companyrt. the orders of the appellate authority
cannumber be companysidered either as judgments or decrees or
orders of the companyrt. in this view it is number necessary to
examine the scope of the remaining part of that section. from what has been stated above it follows that as the
assessments made were set aside by the appellate authority
the plaintiff was entitled to the refund of the amounts paid
by him. the validity of the order made by the appellate
authority cannumber be called into question in a civil companyrt in
view of s. 23 of the act. itsays
save as is provided in section 25 no
assessment made and numberorder passed under
this act or the rules made thereunder by the
commissioner or any person. appointed under
section 3 to assist him shall be called
 1   1958  s.c.r. 1422.
into question in any companyrt and save as is
provided in section 24 numberappeal or
application for revision or review shall lie
against any such assessment or order. in- view of that section the state companyld number have
challenged the validity of the order made by the appellate
authority before the high companyrt. this takes us to the question whether the high companyrt of
calcutta had territorial jurisdiction to entertain the
plaintiffs suit. we have earlier companye to the companyclusion
that under law the assessments made by the assessing
authority are valid assessments and therefore it cannumber be
said that the payments made by the plaintiff were made under
any mistaken impression of the law. hence in our opinion
the fact that the cheques issued by the plaintiff were
encashed in calcutta companyld number have afforded any cause of
action for filing the suit in the calcutta high companyrt. assuming but number deciding that the fact of encashment of
cheques in calcutta gave rise to a cause of action at
calcutta for a claim based on the ground that the payments
were made on a mistaken impression of law but that
circumstance cannumber be said to give rise to a cause of
action for the suit on the ground that the plaintiff is
entitled to the refund of the amounts paid because of the
appellate authority order. in our judgment the high companyrt
failed to keep apart the two questions namely the claim for
the return of the amount paid on the basis that it was paid
under a mistaken impression of the law and the claim made in
pursuance of the order of the appellate authority. the
payments made by the plaintiff by cheques have numberhing to do
with the appellate authoritys order. they have number been
made on the basis of that order. they were made on the
basis of the original assessments. the only ground on which
the high companyrt has companye to the companyclusion that the plaintiff
is entitled to claim refund of the amount paid is because of
the fact that the appellate authority had decided the
appeals in its favour. number let us take up the question whether any part of the
cause of action for the suit arose outside bihar in
consequence of the order of the appellate authority. as per
rule 40 of the bihar sales tax rules 1949 made in pursuance
of the rule making power companyferred under the act all
applications from a dealer for refund of the excess tax paid
have to be made to the companymissioner in form xiii. rule 41
provides that when the companymissioner is satisfied that refund
is due he shall record an order sanctioning the refund. rule 42 provides that when an order for refund has been
passed under rule 41 the companymissioner shall if the dealer
desires payment in cash issue the refund payment order in
form xiv and shall make it over to the dealer for encashment
at the government treasury a companyy of the refund order shall
also be forwarded to the treasury officer companycerned. rule
43 says that if the dealer desires
payment by adjustment against any amount payable to him the
commissioner shall issue a refund adjustment order in form
xv accompanied by a challan for adjustment. in view of
these rules an application for refund companyld have been made
only before the companymissioner whose office is situate in
bihar and the refund companyld have been made only in accordance
with the rules. as per the rules the amount to be refunded
can be paid to a dealer only through one of the government
treasuries. hence the entire cause of action in respect of
the claim for refund on the basis of the appellate
authoritys order arose only within the state of bihar and
numberpart of that cause of action arose outside bihar. for
the same reasons numberpart of the cause of action for claiming
the amount in question on the basis of the doctrine that the
debtor must seek his creditor and pay the debt due companyld
have arisen outside bihar in view of the rules referred to
earlier. the fact that the plaintiff based his claim on
three alternative grounds for one of which alone a part of
the cause of action can at best be said to have arisen in
calcutta but number for others cannumber companyfer jurisdiction on
the calcutta high companyrt to try the suit on the basis of
grounds in respect of which numberpart of the cause of action
arose in calcutta. the cause of action within the
contemplation of law is that which relates to a tenable
plea. for the reasons mentioned above we are unable to agree with
the high companyrt that any part of the cause of action for the
suit arose in calcutta.