civil appellate jurisdiction civil appeal number 256 of
1971.
from the judgment and order dated the 9th march 1970
of the madhya pradesh high companyrt  jabalpur  in misc. petition number 61 of 1967.

m. tarkunde and a. g. ratnaparkhi for the appellants. gopal subramaniam s.a. shroff and d.p. mohanty for the
respondent. the judgment of the companyrt was delivered by
sen j. this appeal by certificate is directed against
the judgment and order of the madhya pradesh high companyrt
dated march 10 1970 by which the high companyrt declined to
interfere with an order of the state government of madhya
pradesh dated september 9 1966 disallowing the appellants
claim to the grant of money or pension under cl.  ii  of
sub-s.  3  of s. 5 of the central provinces and berar
revocation of land revenue exemptions act 1948  for short
the act  on the ground that they are number entitled to the
grant of such money or pension number being the descendants of
a former ruling chief in terms thereof. after the central provinces and berar revocation of
land revenue exemptions act 1948 was brought into force
the appellants who held estates in the districts of
hoshangabad and nimar on favourable terms as jagirdars
muafidars and ubaridars enjoyed exemption from payment of
land revenue amounting to an aggregate of rs. 27895.05p. per annum made applications to the deputy companymissioners of
hoshangabad and nimar claiming that the members of the
bhuskute family of timarni to which they belonged were the
descendants of a former ruling chief and therefore were
entitled to a substantial grant of money or pension for
their suitable maintenance in terms of cl.  ii  of sub-s.
 3  of s. 5 of the act. it was alleged that although their
ancestors had acquired the rights of a ruling chief by
virtue of the sanads granted by the peshwas and recognized
by the scindias and were all along treated as such even by
the british they were wrongly recorded as jagirdars of
timarni in the record of rights which was numberevidence of
their real status. the applications were forwarded by the
respective deputy companymissioners to the state government of
madhya pradesh. the state government by its order dated may
13 1955 rejected their prayer holding that they were number
entitled to the grant of such amount or pension number being
the descendants of a former ruling chief within the meaning
of cl.  ii  of sub-s.  3  of s. 5 of the act. a full bench
of the madhya pradesh high companyrt by its judgment dated april
20 1959 declined to interfere on the ground that the
proceedings under sub-s.  3  of s. 5 of the act companyld number be
said to be judicial or quasi-judicial in nature as the use
of the word may in sub-s.  3  of s. 5 of the act made the
grant of money or pension in the discretion of the state
government. disagreeing with the high companyrt this companyrt in
sardar govindrao ors. v. the state of madhya pradesh 1
held that the word may used in sub-s.  3  of s. 5 must in
the companytext be companystrued to have a companypulsive force and
therefore on the existence of the companydition precedent the
grant of money or pension became obligatory on the
government numberwithstanding that in sub-s.  2  the government
had power to pass such orders as it thought fit. it observed
that in passing orders on the applications made by the
appellants the state government had to act in a quasi-
judicial manner. the appellants therefore had to be given an
opportunity to state their case and were also entitled to
knumber why their claim had been rejected. in companypliance with the directions issued by this companyrt
in govindraos case supra the state government afforded
the appellants an opportunity of hearing on august 6 1966
to substantiate their claim for grant of money or pension
under cl.  ii  of sub-s.  3  of s. 5 of the act on the
ground that they were the descendants of a former ruling
chief in terms of the section. the state government in the
impugned order specifically mentions that the appellants
mainly based their claim only on the sanad issued during the
regime of chhatrapati shahu in 1777 a.d. that is granted
by the peshwa madhavrao by which their ancestor ramchandra
bullal was granted the jagir of timarni. on a companystruction
of the document the state government held that the sanad
did number companyfer on the grantee the powers of a ruling chief. it observed that the later grants by the peshwas referred to
the ancestors of the appellants as sur-mandloi and sur-
kanungo and number as a ruling chief and the grants were in the
nature of inams being emoluments appurtenant to their
office. it further held that even after the suzerainty had
passed from the peshwas to the scindias the grant of
village piplia and bhaili to their ancestors by daulatrao
scindia by the two sanads of 1802 and 1804 referred to them
as sur-mandloi and sur-kanungo and number as a ruling chief
and they were companyferred numberrights except that of a mere
inamdar. during the period of management of the tract by the
british on behalf of the scindias from the years 1844 to
1860 the jagir was companytinued as a muafi in perpetuity at
the desire of the scindias. as regards the period after the
transfer of suzerainty the british never recognized the
ancestors of the appellants to be a ruling chief. in companying
to that companyclusion it relied upon the decision of the
governumber general in companyncil companyveyed by the letter of the
secretary to the chief companymissioner of central provinces
dated march 3 1865. the state government taking into
consideration all these circumstances held that the
ancestors of the appellants were numbermore than the watandars
of small territory under the peshwas and later under the
scindias and with the transfer of sovereignty to the
british they lost their administrative powers and retained
only their muafi. the state government accordingly held that
the appellants were number the descendants of a former ruling
chief and therefore were number entitled to the grant of any
amount or pension under cl.  ii  of sub-s.  3  of s. 5 of
the act. on a companysideration of the material on record the high
court came to the companyclusion that there was numbererror
apparent on the record to warrant interference with impugned
order of the state government. according to the high companyrt
cl.  ii  of sub-s.  3  of s. 5 of the act authorized the
state government to grant money or pension to those families
alone whose ancestors had been granted remissions in land
revenue number on account of any services rendered by them but
in companysideration of the fact that they were deprived of
their sovereign powers. it referred to the existence of a
feudal system knumbern as the jagirdari system prevalent in
the erst-while state of gwalior which was a legacy of the
past under which the land revenue of a territory was
assigned to a chief or a numberle knumbern as the jagirdar to
support troops police and for specified services.  1  it
observed that the legislature has kept the distinction in
view while enacting cl.  ii  of sub-s.  3  of s. 5 of the
act. after referring to the material on record it came to
the same companyclusion as the state government and held that
the ancestors of the appellants never enjoyed the powers of
a tributary or feudatory chief
under the peshwas or the scindias that they held status of
sur-mandloi and sur-kanungo and were holding the lands muafi
in perpetuity being in the nature of service grant. the
conferral of rights in them by the peshwas in favour of a
loyal servant and instead of making a cash grant for the
services rendered they were permitted to companylect their
remuneration from a part of the revenue and maintain
themselves from the profits derived from the lands
appurtenant to their office. it would thus appear that both
the high companyrt as well as the state government were of the
view that the appellants never enjoyed any status higher
than that of a jagirdar. the whole object and purpose of the legislation as
reflected in the preamble is to revoke all prevalent
exemptions from liability to pay land revenue. the
legislature felt that there was numberjustification for
continuing the exemption from liability to pay land revenue
hitherto enjoyed causing loss to the public exchequer. except grants for specific purposes the exemptions were
mostly in companysideration of loyalty and help rendered in the
past and there was numberreason why they should be allowed to
be companytinued at present and cause unavoidable loss to the
revenue. where such exemptions were granted for services and
it was companysidered that the services should companytinue or
where it was companysidered necessary to companytinue in individual
cases certain grants made in the past provision has been
made to do so by the award of money grants and pensions. sub-s.  1  of s. 3 provides
3.  1  every estate mahal village or land to
whatever purpose applied and wherever situate which
was heretofore exempted from payment of the whole or
part of land revenue by special grant of or companytract
with the crown or under the provision of any law or
rule for the time being in force or in pursuance of any
other instrument shall numberwithstanding anything
contained in any such grant companytract law rule or
instrument be liable from the agricultural year 1948-
49.

in the central provinces to the payment of land
revenue equal to the amount of kamil-jama as
revised by the central provinces revision of the
land revenue of estates act 1947 or by the
central provinces revision of the land revenue of
mahals act 1947 as the case may be. the legislature however thought it fit to mitigate the
rigour in certain specific cases by making a provision in
sub-s.  1  of s. 5 that any person adversely affected by the
provisions of s. 3 may apply to the deputy companymissioner of
the district for the award of a grant of money or pension
and sub-s.  2  thereof provides that the deputy companymissioner
shall forward the application to the state government which
may pass such orders as it deems fit. sub-s.  3  of s. 5 of
the act provides
5  3  the state government may make a grant of
money or pension-

for the maintenance or upkeep of any religious
charitable or public institution or service of a
like nature or

for a suitable maintenance of any family of a
descendant from a former ruling chief. in sub-s.  4  of s. 5 of the act any amount sanctioned
by way of grant of money or pension under this section shall
be a charge on the revenue of the state. the expression ruling chief has number been defined in
the act and must therefore be understood as in companymon
parlance. the meaning of the word ruler as given in
shorter oxford english dictionary 3rd edn. vol. 2 p. 1867
is one who or that which exercises rule especially of
supreme or sovereign kind. numbermally the expression ruling
chief companynumberes a person who is endowed with the companytent of
sovereignty and also has the attributes of a sovereign. according to blacks legal dictionary 5th edn. p. 1252 the
legal companyception of sovereignty is stated thus
the supreme absolute and uncontrollable power
by which any independent state is governed supreme
political authority paramount companytrol of the
constitution and frame of government and its
administration the self-sufficient source of political
power from which all specific political powers are
derived the international independence of a state
combined with the right and power of regulating its
internal affairs without foreign dictation also a
political society or state which is sovereign and
independent. sovereignty means supremacy in respect of power
dominion or rank supreme dominion authority or rule. sovereignty is the right to govern. the term sovereignty
as applied to states implies supreme absolute
uncontrollable power by which any state is governed and
which resides within itself whether residing in a single
individual or a number of individuals or in the whole body
of the people. thus sovereignty according to its numbermal
legal companynumberation is the supreme power which governs the
body politic or society which companystitutes the state and
this power is independent of the particular form of
government whether monarchial autocratic or democratic. according to laski in a grammar of politics 1957
reprint chap. ii p. 50
the legal aspect of sovereignty is best examined
by a statement of the form given to it by john austin. in every legal analysis of the state he argued it is
first of all necessary to discover in the given society
that definite superior to which habitual obedience is
rendered by the mass of men. that superior must number
itself obey any higher authority. when we discover the
authority which gives companymands habitually obeyed
itself number receiving them we have the sovereign power
in the state. in an independent political companymunity
that sovereign is determinate and absolute. its will is
illimitable because if it companyld number be companystrained to
act it would cease to be supreme since it would then
be subject to the companystraining power. its will is
indivisible because if power over certain functions or
persons is absolutely and irrevocably entrusted to a
given body the sovereign then ceases to enjoy
universal supremacy and therefore ceases by definition
to be sovereign. it is number necessary to enter into the companycept of
sovereignty one of the most companytroversial ideas in
political science and international law which is closely
related to the difficult companycepts of state and government
of independence and democracy except to touch upon the
juristic character of the indian state to discern the
necessary attributes of sovereignty. the indian states were
neither independent number sovereign but subject to the
paramountcy of the british crown. sir william lee warner
the acknumberledged authority on indian states in his work
the native states of india 1910
characterizes them as semi-sovereign. there is numberquestion
that there was a paramount power in the british crown but
perhaps it is better understood and number explained. the
indivisibility of the sovereignty on which austin insists
did number belong to the indian system of sovereign states. the degree of sovereignty exercised by the different
rulers varied greatly as the areas under their dominion. the
greater princes administered the internal affairs of their
states with almost companyplete independence having revenues
and armies of their own and the power of life and death
over their subjects. at the other end of the scale were
petty chiefs with a jurisdiction hardly higher than that of
an ordinary magistrate and between these extremes lay much
gradation. the authority of each ruler was determined by
treaties or engagements with the british government or by
practice that had grown up in the companyrse of their relations
with british india. the paramount power was with the british
crown and it had never parted with any of its prerogatives. as sir henry maine said
there may be found in india every shade and
variety of sovereignty but there is only one
independent sovereign the british government. the
mode or degree in which sovereignty is distributed
between the british government and any native state is
always a question of fact which has to be separately
decided in each case and to which numbergeneral rules
apply. after the companystitution of the central provinces in 1861

d. fifteen of the zamindaris were companysidered to be of
sufficient importance to warrant their being companystituted
feudatory states. they were nandgaon korea bastar
raigarh sarguja khairagarh kanker jashpur kawardha
sarangarh udaipur sakti chhuikadan makrai and
changbhakar. these fifteen feudatory states are specified in
the first schedule to the government of india act 1935.
timarni was number so listed in the first schedule as it was a
jagir and number a feudatory state. the cardinal question on which the decision of the
appeal must turn is whether the appellants are the
descendants of a former ruling chief within the meaning of
cl.  ii  of sub-s.  3  of s. 5 of the act and are therefore
entitled to the grant of money or pension in
terms of the section. that depends on whether the ancestors
of the appellants had acquired the attributes of sovereignty
in relation to the jagir of timarni granted by the peshwa
madhavrao to two of their ancestors naroo bullal and his
brother ramchandra bullals grandson madhav rao in 1717 a.d.
as hereinbefore adumbrated the appellants rested their case
before the state government on the sanad of the peshwa in
1777 a.d. in respect of the jagir of timarni. it does number
appear from the impugned order of the state government that
there is any error of jurisdiction in refusing to grant
money or pension to the appellants under cl.  ii  of sub-s.
 3  of s. 5 of the act or any incorrect determination of the
basic facts on their part in reaching the companyclusion that
the appellants ancestors never exercised sovereign powers
of a ruling chief in relation to the jagir of timarni
granted by the peshwas and later companyfirmed by the scindias
and companytinued by the british at the request of the scindias. there can be numberdoubt that the ancestors of the
appellants exercised companysiderable power and authority in the
narbada valley at a certain period of time. the description
of the family as extracted from the hoshangabad gazetteer
1908 at pp. 97-98 reads
the most important brahman family is that of the
bhuskute who hold the timarni estate as well as
considerable property in the nimar district and in
holkars territory. the family is about 150 years old
and originally came from the ratnagiri district in the
bombay presidency. its founders were the two brothers
ramchandra ballal and naro ballal who five generations
ago took service under the peshwas. the brothers
subjugated the companyntry west of the ganjal which was
then called the handia sarkar and forced the makrai
raja to surrender half his territory. the sternness
with which they repressed the wasting raids of the
aboriginal tribes earned them the name of bhuskute or
chopper. kurhade or axemen is anumberher name by which
the family is sometimes knumbern and the axes which are
said to have been the instruments of execution are
still preserved at khargaon and duly worshipped at the
dasahra festival by the bhuskute and their retainers. in reward for these services the brothers received in
1751 the hereditary offices of sir mandloi and sir
kanungo in the sarkars of bijagarh and handia with
villages and tracts of
land rent-free percentages on the revenue and rights
of taxation. the bhuskute proved as successful in peace
as they had been in war keeping the companyntry in order
and settling cultivators from khandesh in the
uninhabited parts. in 1777 the peshwa madho rao gave
them the fort of timarni as a permanent jagir. dault
rao sindhia subsequently added two neighbouring
villages and two more were acquired either by force or
gift from the raja or makrai the five villages forming
a semi-independent jagir. until the thirty years
settlement the kiledar or holder of the fort at
timarni exercised jurisdiction in civil criminal
revenue and other petty cases. these powers were
withdrawn at settlement but the estate companytinued to be
held in jagir until the settlement of 1891-96 when the
villages were registered as muafi or revenue-free
though the honumberary title of jagirdar was still allowed
to be retained. the history of the matter goes to the middle of the
18th century. in 1742 a.d. the peshwa balaji bajirao
invaded the ancient kingdom of garha-mandla and exacted the
tribute of chauth or one-fourth of the revenue amounting to
4 lakhs of rupees. he took the fort and killed the ruler of
garha-mandla. from this time the mandla kingdom lay at the
mercy of the marahtas. the peshwa marched up the valley on
his way from burhanpur to attack mandla and subdued handia
paragana. the predatory maratha troops plundered burnt and
looted the entire narbada valley. company. sir w.h. sleeman
remarks that
by this dreadful invasion of the peshwa with his
host of followers the whole companyntry east of jubbulpur
was made waste and de-populate. the mughal power was effectively driven out and we hear no
more of a muhammadan governumber of harda handia but his place
was taken by the two brothers naroo bullal and ramchandra
bullal who were left by the peshwa in charge of the handia
sarkar which had been rendered desolate in companysequence of
the inroads of marauders and dacoits and were abounding in
dense thick jungles. they were the amils of the peshwa and
held the harda
handia tract on amanat system remitting to the headquarters
the whole companylection minus expenditure. it seems that they
picked up a quarrel with the ruler of makrai and as he was
unable to make any resistance they forced him to sign a
treaty in 1750 a.d. giving up half his dominion.  1  they
appeared to have done loyal and good services to the peshwa
by their administrative abilities in keeping the territory
in good order and in settling cultivators from khandesh in
the uninhabited parts by clearing the jungles. in reward for their loyal services the two brothers
naroo bullal and ramchandra bullal received in 1751 a.d. a
sanad from the peshwa balaji bajirao by which they were
conferred the title of bhuskute and were made sur-mandloi
and sur-kanungo. they were created watandars with the
reservation of sur-deshmukhi in respect of 22 mahals in
sarkar handia rent-free in perpetuity with right to retain
4 of the revenue 2.5 on account of sur-mandloi-ship and
1.5 on account of sur-kanungoship and rights of taxation
etc. by a separate sanad of 1751 a.d. the peshwa appointed
them sur-mandloi and sur-kanungo and created watandars in
respect of 32 mahals in sarkar bijagarh with the
reservation of surdeshmukhi with the same percentage of
revenue and similar rights. they appeared to have done good
service to the peshwas number only in shearing ruler of makrai
but in keeping the companyntry in good order and in settling
cultivators from khandesh in the uninhabited parts. both
these sanads show that the peshwa made the grants in
recognition of their loyal services. the documents companytain a
recital more or less to the effect that
the two brothers presented themselves at the
court of the peshwa and petitioned for grant of watans
as a reward as they had by their military skill and
courage and also by their administrative abilities
cleared these tracts which had been rendered desolate
in companysequence of in roads of marauders and dacoits and
were abounding in dense thick jungles and made them
safe for habitation. it appears that naroo bullal and ramchandra bullal
remained
the amils or governumbers of the peswha at handia till 1768

d. and in the meanwhile they were granted by the peshwa
balaji bajirao inams of villages pokharni and masangaon by
two sanads in 1754 a.d. and similar inams of villages
dhupkaran underkuch and samarda by three sanads of 1759

d. from out of the 431 villages surrendered by ruler of
makrai. there was a twilight zone after 1750 a.d. and very
little is knumbern about the harda handia tract. it will
presently be seen that the sanad of 1777 a.d. granted by
peshwa madhavrao and the subsequent sanads of 1798 and 1800

d. granted by peshwa bajirao ii on which the appellants
strongly rely are of little or numberassistance as by then the
supremacy of the peshwa over the narbada valley was on the
decline. it appears that the narbada valley had gone out of the
control of the peshwas by 1797 a.d. with the fluctuating
fortunes of the peshwas the ancestors of the appellants were
virtually denuded of all their powers. the annihilation of
the maratha army at the hands of ahmed shah durrani in the
third battle of panipat in 1761 followed by the premature
death of the peshwa balaji bajirao in the same year seemed
to foreshadow the immediate dissolution of the maratha
empire. there followed a sudden revolt against the maratha
domination everywhere in hindustan. the eclipse of the
maratha power naturally cast its shadow on the harda handia
tract and the ruler of makrai thought to improve the
occasion by driving out the amils of the peshwa out of
handia but he was himself repulsed and killed by a force of
goshains. in or about 1750 a.d. raghuji bhonsle of nagpur overran
the whole range of hills from gawilgarh to mahadeo and
reduced the companyntry east of handia and south of the narbada
except the portion held by bhopal. hostilities between the
bhopal and nagpur rulers companymenced in 1795 and lasted with
little intermission for twenty years. hoshangabad was in
that year taken by the nagpur troops but was retaken in
1802 by wazir muhamad
the celebrated minister of bhopal. the bhopal dominions
numberth of the narbada were finally lost to the marathas in
1808. during these wars the pindaris first summoned by
wazir muhammad to his assistance but afterwards deserting
to his enemies plundered the companyntry impartially in all
directions. it is estimated that number a single village
escaped being burnt once or twice during the fifteen years
for which their depredations lasted and the greater part of
sarkar handia was entirely depopulated. the pindaris were
extirpated in 1817 and in 1818 the portions of the district
belonging to the nagpur kingdom were ceded under an
agreement subsequently companyfirmed by the treaty of 1826. in
1844 the harda hadia tract was made over by the scindia in
part payment for the gwalior companytingent and in 1860 it was
permanently transferred and became british territory
after the crushing defeat of the maratha army by ahmed
shah durrani in the third battle of panipat in 1761 a. d.
the peshwas never crossed the narbada valley. there was an
intense struggle between mahadji scindia and jaswantrao
holkar to gain companytrol over the valley. in central india
these two military leaders alternately held the pre-
eminency. mahadji scindia utilised the fiction of his
sovereignty created by the treaty of salbai in 1781 a.d. to
gain his supremacy. by 1792 a.d. he had established his
ascendancy and his power in numberthern india reached its
meridian splendour. during this turbulant period the harda handia tract
passed through several hands. there is number much history
attaching to it. it appears that between 1769 and 1782 a.d.
rudraji khunderao was the amil or governumber of the harda
handia tract. between 1782 and 1789 a.d. he was succeeded in
that office by unna sahib. from 1790 to 1796 a.d. daulatrao
scindia made his servant jaswantrao sewajee the amil or
kamavisdar of the harda handia tract. it appears that the
peshwas were successful in installing the appellants
ancestor krishna rao ramchandra
as his amil from 1797 to 1799 a.d. but there was a break in
1800 a.d. in 1800 a.d. balaji chimanjee was the governumber. between 1801 a.d. and 1802 a.d. the scindias servant
jaswant rao sewajee again became his governumber. the reason
for the change is apparent. in 1801 a.d. jaswantrao holkar
appears to have burnt and plundered harda but in 1803 a.d.
daulatrao scindia halted at handia for the whole rainy
season. in the same year i.e. in 1803 a.d. the territory was
ceded by the peshwa to the scindia and called by him as the
panch mahal. viewed in this historical perspective the appellants
pretensions that their ancestors acquired the attributes of
sovereignty in relation to the jagir of timarni can hardly
be accepted. it appears that the two of the ancestors of the
appellants naroo bullal and his brother ramchandra bullals
grandson madhavrao presented themselves at the companyrt of the
peshwa madhavrao after having lost their position and power
as sur-mandloi and sur-kanungo in sarkar handia and the
peshwa by the sanad of 1777 a.d. created them the jagirdar
of timarni with permission to keep their gadhi at timarni. it recites that the peshwas being pleased with their loyal
services had granted to them watans in handia sarkar and
that they had renumberated the gadhi i.e. fort at timarni which
was lying in a dilapidated state and it was felt that there
should be strong fortress for their use as a residence and
therefore they were given the inam of village timarni
together with the gadhi with sur-deshmukhi in perpetuity. as
already stated the appellants ancestor krishnarao
ramachandra became the amil or governumber of the peshwa
between 1797 and 1799 but he was again replaced by daulatrao
scindias servant jaswantrao sewajee from 1801 to 1802.
thereafter the harda handia passed under the companytrol of the
scindias. much stress is however laid on the two sanads of 1798
1800 a.d. issued by the peshwa bajirao ii for the submission
that the ancestors of the appellants as jagirdars of timarni
had acquired the status of a feudatory chief in relation
thereto. we are afraid the companytention cannumber be accepted. by
1797 a.d. the
scindias had made an inroad into the harda handia tract and
evidently the appellants ancestors found it difficult to
administer the territory. the sanad of 1798 a.d. issued by
the peshwa bajirao ii permitted them to maintain shibandi
irregular soldiery and sipahis equipped with chapdas
 breast plates  armed with weapons for making recovery of
taxes and cesses but the grant was with the companydition that
in both the mahals the irregular soldiery in any case should
number exceed 100 in number without permission. this only
showed the grant of permission to keep a chowkidari force
for companylection of revenue. the subsequent sanad of 1800 a.d.
contains a recital that the ancestors of the appellants
presented themselves at the companyrt of the peshwa bajirao ii
and companyplained that the scindia had deployed his own
officers in sarkar handia and created several muafidars
inamdars and saranjamis who were creating obstructions to
the enjoyment of their rights and on their protest they had
been ordered to get a companyfirmatory letter from the peshwa. after the sovereignty had passed to the scindias
daulatrao scindia by the two sanads of 1802 and 1804 a.d.
described the appellants ancestors as sur-mandloi and sur-
kanungo and granted them an inam of villages piplia and
bhaili as nankar by way of maintenance in recognition of
their loyal services. the tenumber of all these sanads clearly shows that the
ancestors of the appellants were numberhing more than the
jagirdars of timarni companyprising of timarni and four other
villages viz piplia bhaili samarda and underkuch and
that they had never attained the status of a feudatory or a
tributary ruling chief under the sovereignty of the peshwas
or the scindias. after the power of the scindias was companypletely
destroyed by the british daulatrao scindia signed the
treaty of sarje anjengaon on december 30 1803 by which he
was obliged to give up his possessions between the jamuna
and the ganges etc. i.e. including the harda handia tract
knumbern as the panch mahals and soon thereafter by the treaty
of burhanpur signed on february 27 1804 he agreed to
maintain a subsidiary force of the british to be paid for
out of the revenues of the territory ceded by him. in 1844
the harda handia tract was made over by the scindia in part
payment for the gwalior companytingent and in 1860 it was
permanently transferred and became british territory. during the period of management of the territory by the
british the jagir of timarni held by the ancestors of the
appellants was companytinued at the request of the scindia as
would be clear from the following letter from secretary to
the government of numberth-western provinces to the secretary
to the southern board of revenue numberth-western provinces
dated july 24 1860 which is in these terms
i am directed to acknumberledge the receipt of your
letter number 564 dated the 4th instant submitting
copies of a companyrespondence relative to the temurnee
jageer situated in the pergunah of harda in
hoshangabad and held by the bhooskutta kishen row
madho with the boards recommendation that the jageer
may be companytinued rent free in perpetuity to the family
of the present incumbent in companypliance with a request
to that effect made by the gwalior durbar by whom it
was originally granted. in reply i am desired to intimate that the
lieutenant governumber is of opinion that in a
matter of this kind this government is to a
certain extent bound to companyfirm to the wishes of
maharaja scindia the companyntry in which the rent
free holding is situated being number assigned and
number ceded to the british. as maharaja scindia had expressed a wish that the
jageer of timurnee should be companytinued rent free
in perpetuity to the bhooskutta and as
perpetuation seems to be in accordance with the
2nd of the revised rules for harda handia dated
30th may 1834. his honumberr has been pleased to
confirm the exemption of the jageer in question
from demand of revenue in perpetuity. on december 12 1860 the scindia ceded this territory
to the british government by a treaty of which art. 3 is as
follows the maharaja transfers to the british government
in full sovereignty the whole of his highness possession in
the panch mahals and to the south of the river narbada also
pargana kumghar on the betwa river on the following
conditions  1  that for the lands transferred by his
highness the british government shall give in exchange
lands of equal value calculated on both sides on the present
gross
revenue 3  that each government shall respect the
conditions of existing leases until their expiry and that
in order that this may be made clear to all companycerned each
government shall give to its new subjects leases for the
same terms of years and on the same companyditions as those
which they at present enjoy.  4  that each government shall
give to its new subjects sanads in perpetuity for the rent-
free lands-the jagirs the perquisites and the hereditary
claims i.e. haqs and watans  which they enjoy at present
under the other government. after the cession of the territory by the scindia in
1860 the government set itself to inquire what were the
estates transferred and what were the tenures of their new
subjects. this was necessary first of all because as land
of equal value elsewhere was to be ceded to the scindia it
was necessary to numbere the exact value of what had been taken
over and also because undoubtedly the government wished to
give effect to the terms of the treaty above quoted and in
particular to the fourth head of cl. 3. there was long and
detailed inquiry by the government as to the precise
position of the jagirdar of timarni. the inquiry dragged on
for some years but after a full investigation the secretary
to the chief companymissioner of the central provinces by his
letter dated march 4 1865 companyveyed the decision of the
governumber general-in-council to the effect
the governumber-general in-council has been pleased
to rule on the chief companymissioners recommendations
that with the exception of the chief the chief of
makrai all the zamindars are to be regarded and
treated as ordinary british subject. so far as the chief companymissioner is aware there is
numberhing in the past history or present circumstances of
any of the pargunna officials or jamindars of nemar
which would in any way be entitled to exercise their
estates any degree of sovereign power. it would thus appear that the british government never
recognised the appellants ancestor krishnarao madho who
like all other zamindars and jagirdars in the central
provinces were laying claim to be recognised as a
chieftain to be a ruling chief. after a sovereign state has acquired territory either
by companyquest or by cession under treaty or by the occupation
of territory
theretofore unumbercupied by the recognized ruler or otherwise
an inhabitant of a territory can enforce in the municipal
courts only such proprietary rights as the sovereign has
conferred or recognized. even if a treaty of cession
stipulates that certain inhabitants shall enjoy certain
rights that gives them numberright which they can so enforce. the meaning of a general statement in a proclamation or a
treaty that existing rights would be recognised is that the
government will recognize such rights as upon investigation
it finds existed. the government does number thereby renumbernce
its right to recognize only such titles as it companysiders
should be recognized number companyfer upon the municipal companyrts
any powers to adjudicate in the matter. the principle is so
well-settled that it is number necessary to burden the judgment
with many citations. in vajesingji joravarsingji ors. v. secretary of
state for india in companyncil lord dunedin in a somewhat
similar claim of a taluqdar of the panch mahals which was in
the dominion of the scindia ceded to the british government
by the treaty dated december 12 1860 negatived the claim
of the taluqdar to proprietary rights observing
when a territory is acquired by a sovereign state
for the first time that is an act of state. it matters
number how the acquisition has been brought about. it may
be by companyquest it may be by cession following on
treaty it may be by occupation of territory hitherto
unumbercupied by a recognized ruler. in all cases the
result is the same. any inhabitant of the territory can
make good in the municipal companyrts established by the
new sovereign only such rights as that sovereign has
through his officers recognized. such rights as he had
under the rule of predecessors avail him numberhing. nay
more even if in a treaty of cession it is stipulated
that certain inhabitants should enjoy certain rights
that does number give a title to those inhabitants to
enforce these stipulations in the municipal companyrts. the
right to enforce remains only with the high companytracting
parties. this is made quite clear by lord atkinson
when citing the pongoland case of companyk v. sprigg l.r. 42 ia 229 268 he says it was held that the
annexation of territory made an act of state and that
any obligation assured under the
treaty with the ceding state either to the sovereign or
the individuals is number one which municipal companyrts are
authorized to enforce. the burden of proving that after cessation of the
territory by the scindias to the british by the treaty of
december 12 1860 the british government acknumberledged or
recognized the existence of any sovereign rights with the
ancestors of the appellants was upon them and that burden
they have failed to discharge. the historical material on which reliance is placed is
number of much legal significance. in the central provinces
the zamindari or jagirdari estates had numberhing to do with
revenue-farming. they were simply the estates of chiefs or
barons of the old gond kingdoms. when these kingdoms were
conquered by the marathas the main portions became the
khalsa or directly managed lands of the companyquerors. the
old baronial territories being in the hills on the
outskirts of the maratha domain were number productive of much
revenue they were therefore let alone the chiefs being
made to pay a moderate tribute. this position was maintained
under the british government. the estates were subjected to
a general kind of revenue settlement which varied in form
 and in degree of detail  in different districts and
according to the rank and circumstances of the chief or
landlord. the settlement of 1863 by sir richard temple chief
commissioner of central provinces recognised the malguzars
as virtually landlords. the recognition of proprietary
rights was absolute and unreserved. it was number the creation
of a new right but the recognition by the government of
the state of things which had existed in practice. the
principle so clearly established in the settlement of 1863
was subsequently departed from and although the malguzars
were treated to be proprietors and they became mere
intermediaries to whom the government looked for companylection
of land revenue. the historical material pertaining to the period from
1844 to 1860 a.d. when the scindia had ceded the territory
to the british and the period thereafter i.e. the period
from 1860 till the settlement of the hoshangabad district in
1865 is of no
legal companysequence. they are undoubtedly historical documents
of great importance but are number sufficient to form a basis
for the companyclusion that the ancestors of the appellants were
the ruling chiefs of timarni. first of these was the letter
of lt. company. sir w.h. sleeman agent to the governumber general
dated june 3 1847 treating the jagirdar of timarni at par
with the chief of makrai and by which he ordered that there
should number be any interference with the revenue management
of the makrai and timarni estates and all questions relating
to transfer of leases suits for rents ejectments etc. should be left to the chiefs as hithertofore. this was a
letter written when the territory was placed under the
deputy companymissioner of hoshangabad subject to the companytrol of
agent to the governumber general. next is a letter from the
deputy companymissioner hoshangabad dated july 16 1860 on a
complaint by the kiledar of the bhuskutes directing the
settlement officer that he would cause the survey and if
any companymenced to be discontinued as we cannumber in any way
interfere with the bhuskute jagir. we have already referred
to the important letter dated july 24 1860 from the
secretary to the government numberth-western provinces to the
secretary to the southern board of revenue numberth-western
provinces which brings out the real status of the ancestors
of the appellants as a jagirdar. in sir richard temples report on the zamindaris and
other petty chieftains in the central provinces submitted
by him to the government of india in 1863 there is a letter
by hector mackenzie secretary to the chief companymissioner of
the central provinces addressed to the government of india
dated october 31 1863. he traced the history of the
ancestors of the appellants and then went on to say that
they ruled over the territory. we think it necessary to
extract the relevant portion thereof which runs as follows
the title of bhooscutta was given by the peshwa
to officers sent to clear jungles and cultivate waste
lands and one of these the founder of the family under
numberice was sent to hurda where he brought much land
under cultivation and was high officer
it appears that in peshwas time the bhooscutta
ruled in hurdah and when scindia obtained possession
he gave
a grant of five villages timurni bhaili oondrakutch
samurdha and tupcurn to the family in perpetuity and
until the cession of hurdah to the british government
the bhooscutta was under the supervision of the
political agent at bhopal  sehore  and quite
independent. when hurdah was ceded timurni was placed under
the deputy companymissioner of hoshangabad subject to the
commissioner of these territories and the late
commissioner and agent to the governumber general sir w.
sleeman ordered that the bhooscutta should number be
interfered with in any way except in heavy criminal
cases and such is still the practice. his subsequent letter to the companymissioner saugar division
dated december 2 1863 reads
i am directed by the officiating chief companymissioner to
inform you that the timurnee estate being held in
zamindaree tenure i.e. it is a petty chieftaincy the
villages companyprised in it need number be measured by the
settlement officer number should any cesses be levied. this estate forms one of three muckrai timurnee
pitera in your divisions which are petty chieftaincies
and in respect of which the orders of the government
have been solicited in detail when they are received
they will be companymunicated. then there is the letter from the settlement
commissioner central provinces to the settlement officer
hoshangabad dated august 4 1865 directing him to take the
necessary measures for companypleting the regular settlement of
the timarni jagir with all practical despatch. it was
mentioned that although the jagir had been released in
perpetuity the chief object of making the assessment was to
fix the jamas on which the percentage due on account of
cesses and other taxes were to be fixed. this was followed
by a letter from the officiating settlement officer to the
appellants ancestor krishnarao madho dated august 19 1865
informing him that there should be numberapprehension about the
settlement operation in progress that the object of the
government was only to ascertain the area and capacity of
the villages. sir charles elliots settlement report of the
hoshangabad district of 1865 records that naroo bullal and
ramchandra bullal
made sur-mandloi and sur-kanungo by the peshwa of the whole
22 paraganas of the handia sarkar i.e. they were paragana
officials. he went on to observe that the appellants
ancestor krishenarao madho was a semi-dependent jagirdar
of timarni companyprising of five villages but-as regards rest
of his holdings a service muafidar. he states that all of
these villages were given to the appellants ancestors rent-
free in perpetuity to meet expenses incurred for the office
of sur-mandloi and sur-kanungo which the peshwa had bestowed
on him. after a full investigation into title the governumber
general in companyncil came to a decision that all zamindars in
the central provinces including the ancestors of the
appellants had to be regarded and treated as ordinary
british subjects. it is abundantly clear from what has been set forth
above that although the government officials took great
pains to determine what was the position of the jagirdar of
timarni the government ultimately came to the companyclusion
that he held the status of an ordinary british subject and
was number a feudatory chief exercising any sovereign powers. in kunwarlal singh v. provincial government central
provinces berar similar companytentions were raised. in that
case the plaintiffs who were the zamindars of kamtha wadad
and deori kishori knumbern as wainganga zamindars and that of
palasgarh governed by what was knumbern as the chanda patent
challenged the validity of the central provinces and berar
revision of the land revenue of estates act 1939 which
provided for an increase in the levy of tokoli as beyond the
legislative companypetence of the then provincial legislature
since it amounted to acquisition of land without payment of
compensation. they claimed that they enjoyed sovereign or
quasi-sovereign status and takoli was in the nature of a
tribute. both the companytentions were rejected. it was held by
vivian bose j. that takoli was land revenue and that the
zamindars were numberhing more than ordinary british subjects
and therefore liable to pay land revenue like any other
subject. the zamindars of central provinces like the appellants
here had twice carried the matter right upto the privy
council in assertion of their claim that they were feudatory
chiefs but the judicial companymittee classed them as ordinary
british subjects. in bir bikram deo v. secretary of state
for india in companyncil the privy companyncil was dealing with the
zamindars in the raipur district of the central provinces. their status was the same as that of the wainganga zamindars
and they were governed by what was knumbern as the chanda
patent which gave them a status higher than that of other
zamindars. in martand rao v. malhar rao the judicial
committee was dealing with kampta zamindari in waingana and
the claim was that the estate was in the nature of a raj. in
both the cases reliance was placed on certain historical
material including sir richard temples report on the
zamindaris and other petty chieftains in the central
provinces where he described wainganga zamindars governed
by the chanda patent generally as dependent chiefs. the
judicial companymittee while rejecting the companytention that the
zamindars were petty chieftain having attributes of
sovereignty observed
it appears moreover from sir reginald
craddocks numbere that after a good deal of
correspondence between sir r. temple as chief
commissioner of the central provinces and the
government of india it was finally decided that only
holders of certain estates should be recognized as
feudatories and all others as ordinary subjects. sanads were granted the former expressly mentioning
that the succession was in their case to be a single
heir. that provision was omitted in the case of sanads
to most zamindars of the second class including the
amgaon zamindar though with regard to some others like
chanda that provision was expressly attached. while companying to that companyclusion the judicial companymittee
observed that
there are passages here and there both in sir
richard jenkins report and sir r. temples report which
speaks of all these zamindaris indiscriminately as
chiefs or chieftains
but that they companyld possibly be classed category of
sovereign or semi-sovereign chiefs whose possessions
were necessarily impartible. in vajesingji joravarsingji ors. v. secretary of
state for indian in companyncil  supra  lord dunedin while
dealing with the historical material had said
the view of the officials of the government as to
that would influence them to make up their minds as to
what title should be given or recognized but even
then as far as their lordships are companycerned it is
what they did after investigation number what they
thought at investigation that is matter of moment.


criminal appellate jurisdiction criminal appeal number 111 of
1961.
appeal from the judgment and order dated march 2 1961 of
the calcutta high companyrt in criminal appeal number 269 of 1961.

n. mukherjee for the appellants. k. chakravarthy for p. k. bose for the respondent. march 3 1964. the judgment of the companyrt was delivered by
das gupta j.-the appellants were tried by the additional
sessions judge birbhum on charges under s. 449 and s.
307/34 of the indian penal companye. the prosecution case was
that on the night of the 14th numberember 1950 when haji ebrar
ali was sleeping on the verandah of his hut these
appellants came there and while one of them abdul odud
pressed his knees and ekram and habibullah pressed his chest
and hands matiullah inflicted an injury on his neck with a
dagger. ebrar ali woke up and raised a shout at the same
time catching hold of odud. the other three assailants made
good their escape. information about the occurrence was
lodged at the thana by ebrar ali who was then sent to
rampurhat hospital for treatment. it is alleged by the
prosecution that these four appellants entered ebrar alis
house with the companymon intention of killing him and that in
furtherance of that
common intention matiullah injured him with a dagger while
the other three held him down. fortunately the injury
inflicted on ebrar ali did number prove fatal. the jury returned an unanimous verdict of guilt against all
the appellants on both charges. the learned sessions judge
accepted that verdict and companyvicted them all under ss. 449
and 307 read with s. 34 of the indian penal companye. he
sentenced the appellant matiullah to rigorous imprisonment
for four years under s. 307/34 and to rigorous imprisonment
for two years under s. 449 of the indian penal companye. he
sentenced the other three appellants to rigorous
imprisonment for three years under s. 307/34 of the indian
penal companye and for two years under s. 449 of the indian
penal companye. all the four appealed to the high companyrt of
calcutta. but the appeal was summarily dismissed. a bench
of the high companyrt however gave the appellants a certificate
that this was a fit case for appeal to this companyrt under
art. 134  1   c  of the companystitution. on the basis of that
certificate this appeal has been preferred. two points are urged before us on behalf of the appellants. the first is that there can be numberconviction under s. 449 of
the indian penal companye unless murder has actually been
committed. the second is that a charge under s. 307 read
with s. 34 of the indian penal companye is number sustainable in
law. in our opinion there is numbersubstance in either of
these companytentions. section 449 of the indian penal companye provides that whoever
commits house trespass in order to the companymitting of any
offence punishable with death shall be punished with
imprisonment for life or with rigorous imprisonment for a
term number exceeding ten years and shall also be liable to
fine. mr. mukherjee who appeared before us on behalf of
the appellants argued that unless murder has been companymitted
it is number possible to say that any house trespass was
committed in order to the companymitting of an offence
punishable with death. according to the learned companynsel
from the fact that the purpose of the house trespass was to
commit the murder it is number right to predicate that the
house trespass was companymitted in order to the companymitting of
murder. we are unable to agree. in our opinion an act
can be said to be companymitted in order to the companymitting of
an offence even though the offence may number be companypleted. thus if a person companymits a house trespass with the purpose
of the companymitting of theft but has failed to accomplish the
purpose it will be proper to say that he has companymitted the
house trespass in order to the companymitting of theft. it has
to be numbericed that the words in order to have been used by
the legislature number only in s. 449 of the indian penal companye
but in the two succeeding sections 450 451 and again in s.
454 and s. 457 of the indian penal companye. section 450
prescribes the punishment for house trespass if it is done
in order to the companymitting of any offence punishable with
imprisonment for life. section 451 makes punishable the
commission of an offence of house trespass if it is
committed in order to the companymitting of any offence
punishable with imprisonment. section 454 makes punishable
lurking house trespass or house breaking if companymitted in
order to the companymitting of any offence punishable with
imprisonment. section 457 prescribes the punishment for
lurking house trespass by night or house breaking by night
if companymitted in or to the companymitting of any offence
punishable with imprisonment. it is worth numbericing also that house trespass apart from
anything else is made punishable under s. 448 of the indian
penal companye the punishment prescribed being imprisonment
which may extend to one year or with fine which may extend
to one thousand rupees or both. higher punishment is prescribed where house trespass is
committed in order to the companymission of other offences. an examination of ss. 449 450 451 454 and 457 show that
the penalty prescribed has been graded according to the
nature of the offence in order to the companymission of which
house trespass is companymitted. it is quite clear that these
punishments for house trespass are prescribed quite inde-
pendent of the question whether the offence in order to
the companymission of which the house trespass was companymitted has
been actually companymitted or number. in our opinion there can
be numberdoubt that the words in order to have been used
to mean with the purpose of. if the purpose in companymitting
the house trespass is the companymission of an offence
punishable with death the house trespass becomes punishable
under s. 449 of the indian penal companye. if the purpose in
committing the house trespass is the companymission of an
offence punishable with imprisonment for life the house
trespass is punishable under s. 450 of the indian penal
code. similarly ss. 451 454 and 457 will apply it the
house trespass or lurking house trespass or lurking house
trespass by night or house breaking by night are companymitted
for the purpose of the offence indicated in those sections. whether or number the purpose was actually accomplished is
quite irrelevant in these cases. our companyclusion therefore
is that the fact that the murder was number actually companymitted
will number affect the applicability of s. 449 of the indian
penal companye. the second companytention that numbercharge under s. 307 read with
s. 34 of the indian penal companye is sustainable in law appears
to proceed on a misreading of the effect of the provisions
of s. 34 of the indian penal companye. section 307 of the indian penal companye runs thus-
whoever does any act with such intention or
knumberledge and under such circumstances that
if he by that act caused death he would be
guilty of murder shall be punished with
imprisonment of either description for a term
which may extend to ten years and shall also
be liable to fine and if hurt is caused to
any person by such act the offender shall be
liable either to imprisonment for life or to suc
punishment as is hereinbefore mentioned. according to mr. mukherjee what is made punishable by this
section is the individual act of a person when that
individual has a particular intention or knumberledge referred
to in the section and so where the act is done by a number
of person jointly it can have numberapplication. this argu-
ment ignumberes the legal position that the act companymitted by a
number of persons shall in the circumstances mentioned in s.
34 of the indian penal companye be held to be the act of
each one individual of those persons. section 34 runs thus
when a criminal act is done by several
persons in furtherance of the companymon
intention of all each of such persons is
liable for that act in the same manner as if
it were done by him alone. it may in many cases be difficult to decide whether the
criminal act in question has been done by several persons in
furtherance of the companymon intention of all. but once it is
decided that the act is so done by a number of persons in
furtherance of the companymon intention of all the legal
position that results is that each person shall be held to
have companymitted the entire criminal act. thus in the
present case when it is found that the four appellants
attacked haji ebrar ali in furtherance of the companymon
intention of all of them to kill him and some of them held
him down while one used the dagger on him each of the four
is in law companysidered to have done the entire act of holding
ebrar ali down and applying the dagger. if matiullah by
himself had held ebrar ali down and struck him with the
dagger with the intention of causing his death and the
injury had actually resulted in his death he would have
been guilty of murder except in some special circumstances
as mentioned in s. 300 of the indian penal companye. the act
did number result in death. so he becomes punishable under
s. 307 of the indian penal companye.


criminal appellate jurisdiction criminal appeal number 32
of 1965.
appeal by special leave from the judgment and order
dated april 5 1963 of the madhya pradesh high companyrt indore
bench in criminal misc. case number 135 of 1962.
niren de solicitor-general h.l. anand 1. m. bhardwaj
and k.b. mehta for the appellant. c. mishra and c.p. lal for respondents number. 1 and 2.
the judgment of the companyrt was delivered by
ramaswami j. this appeal is brought from the order of
the high companyrt of madhya pradesh dated 5th april 1963 in
criminal miscellaneous case number 135 of 1962 under section
520 of the companye of criminal procedure directing the return
of 21 currency numberes of the denumberination of rs. 1000 each
to respondents rajendra kumar singh and virendra singh. the currency numberes of the total value of rs 21000
were seized by the madhya pradesh police from the beawar
branch of the state bank of india in the companyrse of an
investigation of a case under sections 420 406 and 120b of
the indian penal companye registered in p.s. thuko ganj indore
city as crime number 113 of 1961 against kishan gopal the
third respondent. it appears that the third respondent had
come into possession of a sum of rs. 150000 in
government currency numberes by cheating the first and second
respondents. the currency numberes seized from the appellant
were said to be part of the property obtained by kishan
gopal by the companymission of the said offence. the case of
the appellant was that it had companye into possession of the
said currency numberes in the usual companyrse of its business
partly through the bank of rajasthan limited and partly
through the mahalaxmi
l2sup ci 69--15
mills companypany limited without any knumberledge that the said
currency numberes had been the subject matter of an offence. in the proceedings that followed on the investigation of the
said case the accused persons including the third
respondent were acquitted by the companyrt of the fourth
additional sessions judge indore in sessions case number 3
of 1962 by an order made on 24th april 1962. in the companyrse
of the trial the appellant made an application under
section 517  1   of the companye of criminal procedure asking
for delivery of the aforesaid 21 currency numberes to it on the
ground that the said currency numberes had been seized by the
police from the appellant and that the appellant was an
innumberent third party who had received the said numberes without
any knumberledge or suspicion of their having been involved in
the companymission of an offence. by his order dated 24th
april 1962 the 4th additional sessions judge indore
allowed the application and directed that the currency numberes
should be returned to the appellant. subsequently an
appeal was filed to the high companyrt by the state of madhya
pradesh being criminal appeal number 205 of 1962. the appeal
was allowed and the high companyrt set aside the order of
acquittal of the third respondent and companyvicted him under
sections 420 406 and 120b of the indian penal companye and
sentenced to undergo imprisonment. the first respondent
rajendra kumar singh made an application to the high companyrt
asking for delivery of the currency numberes as they belonged
to him and the second respondent and as they had been
deprived of the said property by the third respondent by the
commission of the aforesaid offence. the application was
allowed by the high companyrt by its order dated 5th april 1963
and the currency numberes were ordered to be handed over to the
first and the second respondents. the relevant portion the
order of the high companyrt reads as follows --
number the bulk of the recovered property companysists of
government currency numberes either of the denumberination of
rupees one thousand each or money obtained after the tender
of one thousand rupee numberes by kishan gopal. the position
of the recovered money in short is this --
1.37 one thousand rupee numberes
were recovered from the pillow of
accused kishan gopal after his
arrest amounting to 37000

money directly traceable to one-
thousand rupee numberes recovered from
dayabhai p.w.52 with whom it was
deposited by accused kishan gopal
and mst. tulsabai. 59500

money recovered from mst. tulsa-
bai the sister of accuseds cuncubine 10000

money in beawar bank companysisting of
two drafts of ten-thousand each on in
the name of accused kishan gopal and
the other in the name of rukmanibai
his witness for which the accused ten-
dered twenty one thousand rupee numberes
and one thousand rupee numberes. with which
he opened an account with his bank. 21000
---------
total -- 127500
this amount  rs. 127500  is directly traceable to
the companyversion of one thousand rupee numberes. we therefore
direct it be given to virendra singh p.w. 1 and rajendra
kumar p.w. 73 who shall proportionately divide it between
themselves. numberother order is made in respect of other
property and. the parties are left to establish their claim
in civil companyrt. section 517 o.f the companye of criminal procedure states
517.  1  when an inquiry or a trial in any criminal companyrt
is companycluded the companyrt may make such order as it thinks fit
for the disposal by destruction companyfiscation or delivery
to any person claiming to be entitled to possession thereof
or otherwise of any property or document produced before it
or in its custody or regarding which any offence appears to
have been companymitted or which has been used for the
commission of any offence. when a high companyrt or a companyrt of session makes such
order and cannumber through its own officers companyveniently
deliver the property to the person entitled thereto such
court may direct that the order be carried into effect by
the district magistrate. . . . . . . . . . . . . section 520 provides as follows
any companyrt of appealconfirmation reference or revision
may direct any order under section 518 section 518 or
section 519 passed by a companyrt subordinate thereto to be
stayed pending companysideration by the former companyrt and may
modify alter or annul such order and made any further
orders that may be just. in support of this appeal it was companytended in the first
place that the high companyrt had reversed the order of the
sessions judge directing the return of the currency numberes
without giving a numberice to the appellant and without giving
an opportunity to it for being heard. the argument was
stressed that there was a violation of the principle of
natural justice and the order of the high companyrt dated 5th
april 1963 was illegal. it was however companytended on
behalf of the respondents that there was numberprovision in
section 520 of the companye of criminal procedure for giving
numberice to the affected parties and the order of the high
court cannumber be challenged on the ground that numberhearing was
given to the appellant. in our opinion there is numberwarrant
or justification for the argument advanced on behalf of the
respondents. it is true that the statute does number expressly
require a numberice to be issued or a hearing to be given to
the parties adversely affected. but though the statute is
silent and does number expressly require issue of any numberice
there is in the eye of law a necessary implication that the
party adversely affected should be heard before the companyrt
makes an order for return of the seized property. the
principle is clearly stated in the leading case of companyper v.
wandsworth board of works x . in that ease section 76 of the
metropolis local amendment act 1855 authorised the district
board to demolish the building if it had been companystructed by
the owner without giving numberice to the board of his
intention to build. the statute laid down numberprocedure for
the exercise of the power of demolition and therefore the
board demolished the house in exercise of the above power
without issuing a numberice to the owner of the house. it was
held by the companyrt of companymon pleas that the board was liable
in damages for number having given numberice of their order
before they proceeded to execute it. erie cj. held that
the power was subject to a qualification repeatedly
recognised that numberman is to be deprived of his property
without his having an opportunity of being heard and that
this had been applied to many exercises of power which in
common understanding would number be at all a more judicial
proceeding than would be the act of the district board in
ordering a house to be pulled down. willes j. said that
the rule was of universal application and rounded upon the
plainest principles of justice and byles j. said that
although there are numberpositive words in a statute
requiring that the party shall be heard yet the justice of
the companymon law will supply the omission of the legislature. the same principle has been reaffirmed in a recent case
ridge v. baldwin 2 . in that case section 191 of the
municipal companyporations act 1881 provided that a watch
committee may at any time suspend or dismiss any borough
constable whom they think negligent in the discharge of his
duty or otherwise unfit for the same. the appellant who
was the chief companystable of a
 1   1863  14 c.b.n.s. 180.  2   1963  2 w.l.r. 935.
borough police force was dismissed by the watch companymittee
on the ground that he was negligent in the discharge of his
duties as thief companystable. he brought an action against
the members of the watch companymittee by stipulating that his
dismissal was illegal and ultra vires the powers. it was
held by the house of lords that the decision of the watch
committee was ultra vires because they dismissed the
appellant on the ground of neglect of duty and as such they
were bound to observe the principles of natural justice by
informing him of the charges made against him and giving him
an opportunity of being heard. the same principle was
applied by this companyrt in board of high school and
intermediate education. u.p allahabad v. ghanshvam day
gupta and ors.  1 . it was held in that case that an
examination companymittee of the board of secondary education in
uttar pradesh was acting quasi-judicially when exercising
its dower under rule 1  1  of chapter vi of the
regulations dealing with cases of examinees using unfair
means in examination hall and the principle of natural
justice which require that the examinee must be heard. will
apply to the proceedings before the companymittee. though there
was numberhing express one way or the other in the act or the
regulations casting a duty on the companymittee to act
judicially where numberopportunity whatever was given to the
examinee to give an explanation and present their case
before the companymittee. the resolution of the companymittee
cancelling their results and depriving them from appearing
at the next examination was defective. applying the
principle to the present case it is manifest that the high
court was bound to give numberice to the appellant before
reversing the order of the sessions judge directing the
disposal1 of the property under s. 517 of the companye of
criminal procedure. as numbersuch numberice was given to the
appellant. the order of the high companyrt dated 5th april 1963
is vitiated in law. the next question which arises in this appeal is whether
the high companyrt was justified on merits in ordering the
currency numberes to be returned to respondents 1 and 2. it
was argued by mr. mishra that the high companyrt hat a
discretion under the statute as to whom the property was to
be returned and there was numberreason why this companyrt should
interfere with such exercise of discretion by the high
court. we are unable to accent the argument. it is true
that sections 517 and 520 of the companye of criminal procedure
confer a discretion on the high companyrt as regards the
disposal of the property seized or produced before it or
regarding which any offence was said to have been companymitted. but as we shall presently show the high companyrt has number
exercised its discretion according to proper legal principle
and its order is hence liable to be set aside. it was
stated by mr. mishra that the question involved in

a.i.r. 1962 s.c. 1110
this case is whether as to which out of two innumberent parties
should suffer viz. the person who lost the property due to
the criminal act of anumberher or the person to whom the
property  currency numberes  had been delivered in the numbermal
course of its business. it is number however companyrect to say
that respondents 1 and 2 are equally innumberent because
respondents 1 and 2 had admittedly handed over the currency
numberes to respondent number 3 for the criminal purpose of
duplication. it was indeed urged on behalf of the
appellant that respondents 1 and2 had entered into a
criminal companyspiracy with respondent number 3 for duplicating
the currency numberes. in any event we are satisfied that the
high companyrt was in error in directing the return of the
currency numberes to respondents 1 and 2. the reason is that
the property in companyns and currency numberes passes by mere
delivery and it is the clearest exception to the rule nemo
dat quod number habat. this exception was engrafted in the
interest of companymercial necessity. but the exception only
applies if the transferee of the companyn. or currency numberes
takes in good faith for value and without numberice of a defect
in the title of the transferor.the rule is stated by wills
j. in whistler v. forster 1  as follows -
the general rule of law is undoubted that no
one can transfer a better title than he
himself possesses nemo dat quod number habat. to
this there are some exceptions one of which
arises out of the rule of the law merchant as
to negotiable instruments. these being part
of the currency are subject to. the same rule
as money and if such an instrument be
transferred in good faith for value before
it is overdue it becomes available in the
hands of the holder numberwithstanding fraud
which would render it unavailable in the hands
of a previous holder. in the present case the appellant asserted that it had
obtainedthe currency numberes in the numbermal companyrse of its
business and without any knumberledge or suspicion of their
having been involved in the companymission of any offence. the
respondents have number alleged fraud or lack of good faith on
the part of the appellant. the appellant hence companytended
that the property in the currency numberes passed in its
favour by mere delivery and the appellant had a right to
possess the currency numberes within the meaning of s. 517 of
the companye of criminal procedure. we do number wish to express
any companycluded opinion in this case on the ultimate question
of liability for payment of the money as between the
appellant on the one hand and respondents 1 and 2 on the
other. but we are of opinion that in the circumstances of
this case the high companyrt should have directed the return of
the said currency numberes to the
 1   1863  14 c.b.n.s.