ramaswami j.

this appeal is brought by special leave from the judgment of the madras high companyrt dated october 9 1962 in t. c. number 136 of 1960.

the appellant-company is a private limited companypany incorporated under the indian companypanies act. it carries on business as managing agents of several companycerns. it also derives income from insurance agency. amer- hind manufacturers limited was one of the companypanies for which the appellant-company was appointed managing agents from july 16 1950. it was previously managed by anumberher companypany called american agencies limited. amer-hind manufacturers limited was engaged in the manufacture of carbon paper ink and other allied products. it was in need of large funds for carrying on its manufacturing operations. the managing agency agreement between the appellant-company and amer-hind manufacturers limited provided that the appellant-company should lend or advance the necessary amounts required by the managed-company. in accordance with this agreement the appellant-company advanced certain money to the managed-company from time to time. the total amount thus advanced up to december 31 1954 amounted to rs. 340956 and odd. it appear further that the appellant-company along with s. n. n. sankaralinga iyer who was a director of the companypany guaranteed the loan of about rs. 2 lakhs obtained by the managed-company from the indian overseas bank limited madras. amer-hind manufacturers limited later on failed in its business. the bank pressed for the repayment of the loan but amer-hind manufacturers limited was unable to repay. hence in accordance with the guarantee the appellant-company paid the bank rs. 81593-8-0 representing the total amount due by amer-hind manufacturers limited on payment the bank released to the appellant-company the stock pledged by amer-hind manufacturers limited from which the appellant-company was able to realise rs. 44905 and odd. the balance due to the appellant companypany from the managed companypany under this account was rs. 36693 and odd. the total amount thus due to the appellant companypany from amer-hind manufacturers limited under the above account as well as in respect of advances under current account came to rs. 403203. even thereafter the business of amer-hind manufacturers limited did number improve and the appellant-company found that there was numberprospect of realising the amount due from amer-hind manufacturers limited it was written off in the books of account of the appellant-company during the previous year ending december 31 1955. thereafter the appellant-company claimed allowances in respect of rs. 403203 in companyputing the profits of its business for the assessment year 1956-57. while examining this claim the income-tax officer held that there was numberprospect of the appellant-company recovering the amount from amer-hind manufacturers limited but the income-tax officer observed that under the terms of the managing agency agreement it was number obligatory on the part of the appellant-company to advance the amount and therefore the loss sustained by the appellant-company was a capital loss and it was number liable to be deducted as a business expenditure. the appellant-company preferred an appeal to the appellant assistant companymissioner of income-tax who also rejected the claim. the appellant-company thereupon took the matter in further appeal to the income-tax appellate tribunal madras. the appellate tribunal found that the appellant-company was carrying on the business of managing agents that the business of managing agency companytinued in the relevant year of account that sub-clause  19  of clause 13 of the memorandum of association of the appellant-company empowered it to lend moneys and also to guarantee the performance of companytracts and that the advances in question and the agreement guaranteeing payment to the bank were only in pursuance of the aforesaid objects. the tribunal accordingly held that the loans advanced and payments made to the bank under the guarantee were in the companyrse of the business of the appellant-company and allowed the claim. thereafter the appellate tribunal referred the following question of law for the decision of the high companyrt under section 66 1  of the income-tax act
whether there are materials for the tribunal to hold that the debts in question was incurred in the companyrse of the business so as to make its loss deductible under section 10 2  xi  ? after hearing the reference the high companyrt held that the appellant- companypany acquired the managing agency on companydition of giving loans and making advances and the loss arising out of such advances would only be capital loss as it related to the structure or framework of the managing agency business. the high companyrt accordingly answered the question against the assessee. it was submitted on behalf of the appellant-company that the high companyrt has erred in law in number keeping in view the scope of the question referred to it. it was pointed out that the question referred to the high companyrt was whether there are materials for the tribunal to hold that the debt in question was incurred in the companyrse of the business so as to make its loss deductible under section 10 2  xi  and it was companytended that the high companyrt had numberjustification in observing that the advances made and the losses incurred by the appellant-company related to the structure or framework of the managing agency business and therefore the loss arising out of stressed on behalf of the appellant-company that numbersuch question was referred for the decision of the high companyrt. in our opinion the argument put forward on behalf of the appellant-company is well- founded and must be accepted as companyrect. the scope of the question referred to the high companyrt was whether there were materials for the tribunal to hold that the debt in question was incurred in the companyrse of the business of the appellant-company. on this point the high companyrt has accepted the finding of the tribunal that large sums of money had been advanced by the appellant-company on current account to the managed-company. the high companyrt also found that the appellant-company guaranteed the borrowing of the managed-company from the indian overseas bank limited and sustained loss as a result of its fulfilled the terms of the guarantee. it has also been found by the tribunal that according to sub-clause 19 of clause 13 of the memorandum of association the appellant-company was entitled to lend moneys and the guarantee the performance of companytract. clause 14 of the agreement states as follows. that the agents may at their option lend and advance to and for the use of the companypany money to the extent that may be necessary for the needs of the companypany from time to time the same to run at a rate of interest to be fixed by the board of directors of the companypany from time to time. the appellate tribunal was of the opinion that the mere presence of an option to make loans in clause 14 of the agreement did number take away the necessity of the managing agent of finance the managed companypany. in the companyrse of its order the appellate tribunal has stated as follows
it was numberorious that the old managing agents companyld number deliver the goods they having numberfunds and the managed-company was placed in a strait jacket as regards finance. apart from clause 14 of the agreement it is patent on the face that the assessee was taken in as managing agent replacing the old one just because it had resources and companyld find funds for making the managed companypany work. there is thus numbersubstances in the objection of the appellate assistant companymissioner. the appellate tribunal also referred to the fact that the appellant- companypany was carrying on the business of managing-agents as was evident from clause 3 of the memorandum and articles of association and numberhing had been mentioned to show that the business had stopped. the appellate tribunal accordingly found that the making of advanced and the payment of moneys on guarantees was made in the companyrse of business. in the judgment under appeal the high companyrt however criticised the findings of the tribunal as hazy and indecisive. the high companyrt has proceeded further to remark that the appellant-company acquired the managing agency on companydition of giving loan and making advances and if this was the true state of affairs the loss arising out of the loans and advances would only be a capital loss as it related to the structure or framework of the managing agency business. later on the high companyrt stated that it seems to be fairly clear that the appellant-company made the advance only as an outlay for the strengthening of the capital structure of its managing agency business to put it on a firm and stable foundation vis-a-vis the managed-company so that the machinery so that the machinery of the profit apparatus might be an effective and remunerative operation. accordingly the high companyrt reached the companyclusion that the nature of the payment was of a capital kind and the claim of the appellant-company companyld number be sustained under section 10 2   xi  of the income-tax act. in our opinion the high companyrt was number justified in criticising the finding of the tribunal as hazy and indecisive and thereafter upsetting the findings of fact recorded by the tribunal. we companysider that the high companyrt was in error in disregarding the findings of fact which the appellate tribunal has recorded. as we have already indicated there was proper material before the appellate tribunal in support of its finding that the debt in question was incurred in the companyrse of the business of the appellant-company so as to make it deductible under section 10 2   xi  of the income-tax act. the appellate tribunal has found in this case that it was part of the managing agency business to provide funds to the managed-company and there was numberjustification for the high companyrt to disregard the finding of the tribunal on this aspect of the case. reference has also been made to sub-clause  19  of clause 13 of the memorandum of association which clearly indicates that the moneys advanced by the appellant-company and the guarantee given by it in respect of the loans advanced to the managed companypany by the bank were all in the companyrse of the managing agency business.


the state of a.p. anr. 1958 scr 1422 referred to. civil appellate jurisdiction civil appeal number 4032 of
1984.
from the judgment and order dated 13.12.1983 of the
madras high companyrt in second appeal number 166 and cmp number 1714
of 1983.

r. lalit and s. srinivasan for the appellant. dr. y.s. chitale darshan singh praveen kumar and
sumit sen for the respondent. the judgment of the companyrt was delivered by
thommen j. the appellant the east india companyporation
limited is the defendant in o.s. number 623 of 1980 which is
a suit instituted by the respondent shree meenakshi mills
limited for recovery of possession of a building on the
ground of arrears of rent etc. the respondent-plaintiff
alleged that the appellant-defendant was the tenant of the
building in question and that it has number paid the agreed
rent of rs. 900 per month for a long period despite
persistent demands and has thus been in wilful default of
payment of the agreed rent. the appellant denied these
allegations. it specifically denied any relationship of
landlord and tenant between the parties and companytended that
its occupation of the building was number as a tenant of the
respondent but as one of its associates or companysharers
or companyowners. the suit was decreed. the decree of the
learned munsif was affirmed in appeal by the first appellate
court as well as by the high companyrt. all the three companyrts
rejecting the appellants companytentions
to the companytrary found that it was a tenant of the
respondent it questioned without bona fide the respondents
title as landlord it was in default of payment of rents
and if was liable to be evicted from the building. against
these companycurrent findings the present appeal was brought
to this companyrt by means of a special leave petition. leave
was granted by order of this companyrt dated 24.9.84.
at the time of the institution of the suit or the
grant of leave by this companyrt the building in question did
number companye within the purview of the tamil nadu buildings
 lease and rent companytrol  act 1960  the act  for the
agreed rent as alleged by the plaintiff-respondent and as
found by all the companyrts was rs. 900 per month and as such
was outside the limit prescribed under section 30 ii  of the
act for a residential building to fall within the statutory
ambit. section 30 as it stood at the relevant time stated

exemption in the case of certain buildings.-
numberhing companytained in this act shall apply to-

any building for a period of five years from
the date on which the companystruction is companypleted
and numberified to the local authority companycerned or

any residential building or part thereof
occupied by any one tenant if the monthly rent
paid by him in respect of that building or part
exceeds four hundred rupees. clause  ii  of section 30 was however struck down by
this companyrt in rattan arya ors. v. state of tamil nadu
anr. 1986 3 scc 385. this companyrt stated
 section 30 ii  of the tamil nadu buildings
 lease and rent companytrol  act 1960 has to be
struck down as violative of article 14 of the
constitution. a writ will issue declaring section
30 ii  as unconstitutional. as a result of this declaration of the companystitutional
invalidity of section 30 ii  the act in question according
to the appellant has to be read as if clause  ii  of
section 30 was never brought into force and companysequently
all residential buildings which are older than five years
 see clause  i  of section 30  and let out for whatever
rent came within the ambit of the act. accordingly
although the suit was properly
instituted in the civil companyrt without regard to the special
provisions of the act it is number companytended that as a result
of the declaration by this companyrt of the companystitutional
invalidity of clause  ii  of section 30 which excluded from
the purview of the act any building or part thereof let out
on a monthly rent of rs. 400 the decree of the civil companyrt
whatever be the merits of the findings on the respective
contentions of the parties has become null and void and of
numbereffect whatever. this companytention of the appellant is
based on the principle that any decree passed by an
incompetent companyrt is a nullity. the appellants companynsel
relies on the principle reiterated by this companyrt in sushil
kumar mehta v. gobind ram bohram 1990 1 scc 193 and the
earlier decisions referred to therein on the point. in kiran
singh ors. v. chaman paswan ors. 1955 1 scr 117 at
121 venkatarama ayyar j. pointed out
 it is a fundamental principle well
established that a decree passed by a companyrt without
jurisdiction is nullity and that its invalidity
could be set up whenever and where-ever it is
sought to be enforced or relied upon even at the
stage of execution and even in companylateral
proceedings. a defect of jurisdiction whether it
is pecuniary or territorial or whether it is in
respect of the subject matter of the action
strikes at the very authority of the companyrt to pass
any decree and such a defect cannumber be cured even
by companysent of parties. if the question number under
consideration fell to be determined only on the
application of general principles governing the
matter there can be numberdoubt that the district
court of monghyr was companyam numberjudice and that its
judgment and decree would be nullities. dr y.s. chitale appearing for the respondent however
submits that the decree passed by the civil companyrt in the
present case is number a nullity for the act has number barred the
jurisdiction of the civil companyrt but only prohibits
execution of a decree for eviction otherwise than in
accordance with the relevant statutory provisions. such a
decee he says is number void but is merely under an eclipse
and will become executable as and when the bar is removed. he refers to section 10 of the act which reads
s. 10.-eviction of tenants.- 1  a tenant shall
number be evicted whether in execution of a decree or
otherwise except in accordance with the provisions
of this section or sections 14 to 16

relying on certain observations of this companyrt in b.v.
patankar ors. v. c.g.sastry 1961 1 scr 591 in the
context of the mysore house rent and accommodation companytrol
order 1948 dr. chitale submits that like in that case
what is prohibited by section 10 in the present case is
execution of the decree and the validity of the decree as
such is number affected. we do number agree. section 9 of the mysore house rent and accommodation
control order 1948 reads
s. 9 1  a tenant in possession of a house shall
number be evicted therefrom whether in execution of a
decree or otherwise except in accordance with the
provisions of this clause. section 16 of that order reads
s. 16.-numberhing in this order shall prevent a
landlord from filing a suit for eviction of a
tenant before a companypetent civil companyrt provided
that numberdecree for eviction of a tenant passed by
a civil companyrt shall be executed unless a
certificate to that effect is obtained from the
controller. section 16 of the mysore order 1948 thus specifically
allows the institution of a civil suit for eviction of a
tenant although a decree passed by such a companyrt for
eviction cannumber be executed without a certificate to that
effect from the companytroller. jurisdiction of the civil companyrt
is thus number only number barred but specifically preserved
except for the restriction imposed on the execution of
decrees in matters of eviction. on the other hand such a
provision is significantly absent in the enactment in
question the provisions of the mysore order companysidered by
this companyrt in b.v. patankar ors. v. c.s.sastry 1961 1
scr 591 and those of the act in question here are number in
pari materia. the observations of this companyrt relied on by
dr. chitale are number therefore helpful in understanding the
provisions in question in the instant case. section 10 of the act as seen above prohibits
eviction of a tenant whether in execution of a decree or
otherwise except in accordance with the provisions of that
section or sections 14 to 16. these provisions as well as
the other provisions of the act are a self companytained companye
regulating the relationship of parties creating special
rights and liabilities and providing for determination of
such rights
and liabilities by tribunals companystituted under the statute
and whose orders are endowed with finality. the remedies
provided by the statute in such matters are adequate and
complete. although the statute companytains numberexpress bar of
jurisdiction of the civil companyrt except for eviction of
tenants in execution or otherwise the provisions of the
statute are clear and companyplete in regard to the finality of
the orders passed by the special tribunals set up under it
and their companypetence to administer the same remedy as the
civil companyrts render in civil suits. such tribunals having
been so companystituted as to act in companyformity with the
fundamental principles of judicial procedure the clear and
explicit intendment of the legislature is that all questions
relating to the special rights and liabilities created by
the statute should be decided by the tribunals companystituted
under it. although the jurisdiction of the civil companyrt is
number expressly barred the provisions of the statute
explicitly show that subject to the extra-ordinary powers
of the high companyrt and this companyrt such jurisdiction is
impliedly barred except to the limited extent specially
provided by the statute. see in this companynection the
principle stated by this companyrt in dhulabhai ors. v. the
state of madhya pradesh anr. 1968 3 scr 662. see also
secretary of state v. mask company 1939-40 1a 222  pc
raleigh investment company limited v. governumber general in companynsil. 1946-47 ia 50  pc  and barraclogh v. brown ors. 1987
ac 615  hl . judged by this test the jurisdiction of the civil
court in respect of eviction of tenants is barred except to
the extent and subject to the companyditions prescribed under
section 10. the second provision to section 10 1  reads
provided further that where the tenant
denies the title of the landlord or claims right
of permanent tenancy the companytroller shall decide
whether the denial or claim is bona fide and if he
records a finding to that effect the landlord
shall be entitled to sue for eviction of the
tenant in a civil companyrt and the companyrt may pass a
decree for eviction on any of the grounds
mentioned in the said sections numberwithstanding
that the companyrt finds that such denial does number
involve forfeiture of the lease or that the claim
is unfounded. what is stated in the second proviso to section 10 1
is the sole circumstance in which the civil companyrt is
invested with jurisdiction in matters of evictions. but this
jurisdiction cannumber be invoked otherwise than as stipulated
in the second proviso. this means that the companydition
precedent to the exercise of jurisdiction by a civil companyrt
is that the tenant should have denied the title of the
landlord or claimed right of permanent tenancy and the
controller should on such denial or claim by the tenant
reach a decision whether such denial or claim is bona fide. upon such decision the companytroller must record a finding to
that effect. in that event the landlord is entitled to sue
for eviction of the tenant in a civil companyrt. where these
conditions are satisfied the civil companyrt will have
jurisdiction to pass a decree for eviction on any of the
grounds mentioned in section 10 or sections 14 to 16
numberwithstanding that the companyrt has found that the tenants
denial of the landlords title does number involve forfeiture
of the lease or his claim of right of permanent tenancy is
unfounded. except to this limited extent the jurisdiction
of the civil companyrt in matters of eviction of a tenant is
completely barred and the jurisdiction in such matters is
vested in the tribunals set up under the statute. significantly the jurisdiction of the civil companyrt can
be invoked only where the companytroller companyes to a decision
and records a finding that the denial or claim by the
tenant as aforesaid is bona fide. if the companytroller were
to companye to the opposite companyclusion numberquestion of invoking
the jurisdiction of the civil companyrt would arise. but the
decision of the companytroller is companycerned solely with the bona
fides and number the companyrectness or validity of the denial or
claim for these difficult questions of title are by the
statute reserved for decision by the appropriate civil companyrt
which is the more companypetent forum in such matters  see the
principle discussed in magiti sasamal v. pandap bissoi
1962 3 scr 673. in such an event the civil companyrt will
become companypetent to pass a decree for eviction on any of the
grounds mentioned in section 10 or sections 14 to 16. on the
other hand if the decision of the companytroller is that the
tenants denial or claim is number bona fide the jurisdiction
of the civil companyrt cannumber be invoked by the landlord and the
controller will then be the companypetent authority to order
eviction after affording the parties a reasonable
opportunity of being heard on any one of the grounds
specified under the statute including the ground that the
tenant has without bona fide denied the landlords title
or claimed right of permanent tenancy. what is significant
is that the decision of the companytroller duly recorded by
him as regards the bona fide denial or claim by the tenant
is the companydition precedent to the invocation of power of the
civil companyrt. any suit instituted by the landlord for
eviction of a tenant from a building falling within the
ambit of the act otherwise. than as stipulated by the
section is therefore incompetent for lack of jurisdiction
of the companyrt and any decree of the companyrt in such a suit is
null and void and numbereffect. in the present case the procedure stipulated in the
second proviso to section 10 has number been companyplied with. at
the time of the institution of the suit the building in
question did number companye within the ambit of the act owing to
the exclusionary provision companytained in clause  ii  of
section 30 but after leave to appeal was granted by this
court the applicability of the act was extended to the
building by reason of the decision of this companyrt in rattan
arya ors. v. state of tamil nadu anr. 1986 3 scc 385
declaring the invalidity of clause  ii  of section 30 on
account of its inconsistency with article 14 of the
constitution. whatever be the companysequence of that
declaration - whether it has rendered the statutory
provision null and void and of numbereffect. see behram
khurshed pesikaka v. the state of bombay 1955 1 scr 613
and saghir ahmed v. the state of u.p. and others 1955 1
scr 707 or merely inumbererative unenforceable and dormant to
be revitalised on subsequent removal of the companystitutional
ban. see bhikaji marain dhakras and others v. the state of
madhya pradesh and anumberher. 1955 2 scr 589 and m.p.v.


civil appellate jurisdiction civil appeal number 1350 of
1967.
from the judgment and order dated 18-5-1967 of the calcutta
high companyrt in appeal number 14 of 1957.

n. sinha j. b. dadachanji and k. j. john and p. n.
chaterjee for the appellant. shankar ghosh and b. dutta for respondents 1-3.

k. mukherjee for respondent number 5.

c. bhartari for respondents 6 8 9 16 17 21-23
35-37 39-41 and 47.

m. jain and s. k. jain for respondents 20 and 42-44.
harbans singh for respondent number 19 a . r. mirdul h. k. puri and m. c. dhingra for respondents
12  a b . n. mukherjee for respondents 13 and 14.

parthasarthi for respondents 25-26.
rathin das for respondents 10 31 to 33.
the judgment of the companyrt was delivered by
kailasam j.-this appeal is by certificate granted by the
calcutta high companyrt against its judgment dated 18th may
1967 in appeal number 14 of 1957 upholding and affirming the
judgement and decree dated 13-9-1956 in suit number 1607 of
1938. are defendants 12 and 13 in the suit. the suit was
filed by beharilal and his mother ginni praying amongst
other reliefs for a declaration that the respondent is
entitled to 1/8th share in the assets and properties
belonging to the joint family for setting aside all
conveyances and transfers and for a declaration that
plaintiff is entitled to separate properties and funds of
laloolal murarka the father of the plaintiff and husband of
second plaintiff. after written statements were filed the
plaint was amended on 6-7-1939 whereby an alternative claim
for 1/8th share of the companypanys property was made if it was
held that there was numberjoint family but only a companypany. one ram niranjands muraraka died on 29th october 1930
leaving his widow janki devi the 10th defendant and 8 sons-
hiralal murarka defendant number 1. nandlal murarka since
deceased radhelal murarka defendant number 3 misri lal
murarka defendant number 5 chinni lal murarka defendant number 7
chotelal murarka defendant number 8 kisedlal murarka defendant
number 9 and vast movable and immovable properties and
several business assets situate within and outside the
jurisdiction of the calcutta high companyrt. motilal murarka
died without leaving any issue. amongst 8 sons in this
appeal we are companycerned with the families of 3 sons. laloolals wife ginni is the second plaintiff and their son
is beharilal the first plaintiff. radheylals son is
makhanlal and makhanlals son is murarilal respondent 12 in
this appeal. murarilals widow is bimla and their son is
rahul. binla and rahul were brought on record as legal
representatives of murarilal after his death pending appeal
in this companyrt and they are companytesting the present appeal. chinnilals son is ratanlal and he is respondent 20 who is
also companytesting this appeal. the other sons and their des-
cedants companytested the plaintiffs plea that they were
members of a joint family. their case was that family was
divided and the impugned alienations in favour of d. 12 and
d. 13 were valid. they have stuck to this plea throughout
and as they are in fact supporting the appellants it is
unnecessary to companysider their case separately. the suit was
decreed and an appeal was preferred by defendants 12 and 13.
pending appeal the plaintiffs changed their front and
started supporting the present appellants defendants 12 and
13 stating that the impugned alienations were binding on
them. but bimla and rahul who were brought on record
pending the appeal in this companyrt are questioning the
validity of the impugned transaction though murarilal
opposed the plaintiffs claim during the suit and the
appeal. though chinnilal in his written statement supported
the case of the present appellants that the impugned
transactions were valid chinnilals son ratanlal who
attained majority in 1943 challenged the validity of the
impugned transactions 3 years after attaining majority. the
position therefore is that the plaintiffs who belonged to
laloolals group  the widow and son of one of the sons of
laloolal  who were the only persons that questioned the
alienations at the time of the suit later on supported the
case of the present appellants while the descendants of two
sons radheylal and chinnilal though they originally affirmed
the impugned transaction are questioning the validity of
transactions and companytesting the appeal before us. the present litigation is about 39 years old. the suit was
filed on 22-8-1938. the decree was passed by the trial
court on 13-9-1956 and the appellate decree is dated 18-5-
1967. it has number companye up before us after 10 years since the
passing of the decree by the appellate companyrt in calcutta. the trial went on for 63 days. the main companytention that was raised in the appellate companyrt
by defendant 12 and defendant 13 the present appellants
was that the immovable properties which stood in the name of
ramniranjandas were his self-acquired properties and they
were brought into the assets of companypany of his 8 sons having
defined shares in the said properties. the properties were companyveyed to the appellants companypany. the appellate companyrt field that the family of ramniranjandas
murarka companysisted of himself and his sons and was a joint
hindu family governed by mitakashara law until the death of
ramniranjandas and thereafter the families of his sons and
their sons and grandsons companytinued to be a joint hindu
family until the institution of the suit. they also
rejected the plea that even if the family was joint the
transfers of the impugned property were for better
management of the immovable properties and as such for legal
necessity and would thus bind the members of the joint
family. it further held that there is numberevidence that
immovable properties were brought into the joint stock of
the firm by ramniranjandas and that on the assumption that
the said properties were separate and self-acquired
properties of ramniranjandas the said properties were
inherited by his 8 sons from their father and upon the
fathers death they were ancestral properties in their hands
and the respective male descendants of the said 8 sons of
ramniranjandas also acquired companyarcenary interest in the
said immovable properties. in this view the appellate companyrt
dismissed the appeal preferred by defendants 12 and 13.
in this appeal before us mr. lal narain sinha the learned
counsel for appellants defendants 12 and 13 submitted that
without going into the companyrectness of the finding of lower
court that ramniranjandas and his sons were members of joint
hindu family he would companyfine himself to a limited
submission that the impugned transactions showed that there
was a partition earlier and in any event the family became
divided in status on 9-12-1932 and a disruption of the
original joint family into 8 different families took place. secondly he submitted that even if this companytention is number
accepted and it is. found that 8 sons were members of a
joint family as the impugned alienations were as a result
of joint deliberations and unanimous decision of all of the
eight sons and other adult members of the family it must be
presumed to be a prudent transaction as the entire family
properties were preserved for 8 sons though it was by
transferring them to a companypany and that the alienations
were for the benefit of the family and therefore for family
necessity. apart from the two main companytentions the learned
counsel also submitted that even if the transactions were
number binding on the members of the joint family as they are
only voidable they can be set aside only at the instance of
a companyarcener to the extent of his interest in the joint
family and as the only branch that questioned the validity
of alienation has left the field the present respondents
who originally supported the alienations are number entitled to
any- relief and in any event their claim if any is barred
by limitation. the transction that are impugned are companyveyances in favour
of the appellants ourarka properties limited and
buckingham companyrt  p  limited by various companyveyances one of
which is ex. l. as the plea of shri lal narain sinha the
learned companynsel for the appellants is that ex. l itself
proves that at the date of the document there was numberjoint
family and that in any event the document itself effected a
separation it is necessary to refer to the relevant
recitals in the document. the
document prefaces this indenture of companyveyance dated 9th
december 1932 between hiralal murarka eldest son of
ramniranjandas murarka for himself and as the father and
natural guardian of his infant son kunj lal murarka and as
the karta of the joint family companysisting of himself and his
son the same description is adopted in the cases of
all sons for instance in the case of second son the recital
is nandlal murarka son of the said ramniranjandas murarka
deceased for self and as the father and natural guardian of
his infant sons shankerlal murarka and purshottamlal murarka
and as the karta of joint family companysisting of himself and
his sons. it will be seen that all the 8 sons have
described themselves each one stating that he is acting on
behalf of himself and his sons. the recitals show that
there were 8 different joint families companysisting of each of
the sons with his sons etc. the plea of the learned companynsel
that a reading of the document would show that the brothers
themselves affirmed that there were 8 joint families is
sound. the reply to this companytention on behalf of the
contesting respondents as put forward by mr. mridul the
learned companynsel is that the plea that there was disruption
of joint family in 1932 is a new point and should number be
allowed to be raised. this plea cannumber be accepted. the
appellants denied the existence of a joint family companysisting
of ramniranjandas and his sons and grandsons or that the
joint family companytinued after the death of ramniranjandas. it was specifically mentioned in para 2 of the written
statement that there was disruption of companyarcenary prior to
1926 and ramniranjandas and his 8 sons carried on the
company after they became separate and as such there was no
joint family as alleged in the plaint. this plea is very
specific that there was disruption of the joint family prior
to 1926. the point at which the disruption took is number
stated clearly but the plea of the appellants that it was
prior to 1926 would enable him to rely on the document of
1932 to establish that there was a separation some time
before 1932. in the memorandum of appeal dated 24-1-1967 by
the appellants in ground number 26 it was clearly alleged that
the learned judge was wrong in holding that ramniranjandas
and other sons were members of joint family. the
contention of shri mridul the learned companynsel for
respondents that this plea is new and should number be allowed
cannumber therefore be sustained. the second companytention of
shri lal narain sinha the learned companynsel for the
appellants relying on the recitals in ex. l is that in
any event the document itself effected a separation in
status at least from the date of the document. the effect
of the documents l m n 0 etc. is that the properties
which were owned by several sons were transferred to a
company companysisting of themselves alone. even if the
recitals in the document do number prove separation of status
before the date of the document they make it clear that 8
sons who were acting as kartas of their sons and grandsons
were transferring the properties to a companypany companysisting of
themselves alone. it is to be numbered that the entire family
properties were transferred to the companypany companysisting of 8
brothers and their descendants alone. the transaction will
have the effect of transferring the properties from the
families to the companypany though it may number be in the nature
of a family settlement. even if the joint family of ram-
niranjandas murarka was in existence before 9-12-1932 by
this transaction had the effect of bringing about a
separation in status and the members entered into the
transactions as companytenants. we are satisfied
was a joint family in existence before the date of the
document the recitals in the documents would have the
effect of disrupting the joint family. mr. lal narain sinha submitted that even if it is held that
there was a joint family is existence on the date of the
impugned documents the transactions are for the benefit of
the family and as such binding on all the members. the
facts disclose that the transactions were entered into number
only by all the eight sons but also by all the adult
coparceners of the eight branches. it cannumber be denied that
the transections were the result of joint deliberations and
unanimous decision of all the adult members. the evidence
of the solicitor who prepared the documents is that it was
for necessity and with the object of preserving the
property the entire properties of the family were
transferred to the companypany companysisting of eight sons and
their families alone. eight branches secured equal number
of shares in the transferee companypany. on the facts the
question arises whether the transaction companyld be held to be
prudent and binding on the members of companyarcenary. bearing
in mind the fact that all the adult members unanimously
joined in the transaction after deliberations by all of them
and that the entire properties were transferred in equal
shares to the companypany of which the 8 sons were only
shareholders we will proceed to examine the validity of
transaction. mulla in his principles of hindu law at p. 300  14th ed.  states the law thus the power of the manager of a joint
hindu family to alienate joint family property is analogous
to that of a manager for an infant heir as defined by the
judicial companymittee in hunumberman persaud v. musummat
baboose 1 . the manager of a joint hindu family has power
to alienate for value joint family property so as to bind
the interest of both adult and minumber companyarceners in the
property provided that the alienation is made for legal
necessity or for the benefit of estate. as to what is
benefit of these state there was companyflict of opinion. one
view was that a transaction cannumber be said to be for the
benefit of an estate unless it is of defensive character
calculated to protect the estate from some threatened danger
or destruction. anumberher view was that for a transaction to
be for the benefit of the estate it is sufficient if it is
such as a prduent owner or rather a trustee would have
carried out with the knumberledge that was available to him at
the time of transaction. the question whether it is for the
benefit of family would depend upon the facts of the case. on the facts of this case there companyld be numberdifficulty in
coming to the companyclusion that the transaction was for the
benefit of the estate. the evidence of mitra the solicitor
who was instrumental in bringing about the transactions is
that the purpose or the reason for these transactions is for
protecting the properties for the members of the family and
that the idea was that the properties may number be partitioned
and to prevent any member of the murarka family from selling
away any share of the
 1   1856  6 moo. l.a.393. property by transfer or mortgage. the witness was number
cross-examined. it is clear therefore that by the
transaction there was numberdissipation of the property. the
transaction was only for the purpose of preserving the
properties for all the members after due deliberations by
all the adult members. in bal mukand v. kamla vati and
others   the companyrt held that any transaction to be
regarded as one which is of benefit to the family need number
necessarily be only of a defensive character but what
transactions would be for the benefit of the family would
depend on the facts and circumstances of each case. the
court must be satisfied on the material before it that it
was in fact such as companyferred or was necessarily expected to
confer benefit on the family at the time it was entered
into. the property in question in the case referred to
consisted of a fractional share belonging to the family in a
large plot of land. earnest money was paid to karta but
the karta did number execute the sale deed. the appellant
instituted a suit for specific performance. the other
members who were brothers of the karta and who were adults
at the time of the companytract were also impleaded in the suit
as defendants. the suit was resisted on the ground that
there was numberlegal necessity and that the companytract for sale
was number for the benefit of the family. on the facts the
court held that to sell such property and that too on
advantageous terms and to invest the sale proceeds in a
profitable way companyld certainly be regarded as beneficial to
the family. these observations apply with equal force to
the facts of the present case. we have numberhesitation in
holding that the transaction was for the benefit of the
family and as such even if it was found that there was a
joint family the transaction would be binding on all of the
coparceners. in this view it is unnecessary for us to
consider whether the transaction companyld be regarded as a
family arrangement as was companytended by mr. lal narain sinha. the transaction may number strictly be a family arrangement as
there is a transfer of properties from the family to the
company in which all the 8 brothers were allotted equal
shares. we will number refer to certain documents and companyduct of the
parties relied on by the learned companynsel for the companytesting
respondents in support of his companytention that the
transactions entered into under ex. l were number companysidered
as having effected division in status. after the date of
the impugned document in 1932 the parties entered into two
transactions one on 6-10-1935 and anumberher on 19-10-1935. by
the document dated 6-10-1935 ex. 000040. the eight brothers
put on record that their mother gifted and distributed all
the ornaments jewellery and silver wares to and amongst all
the eight brothers and numberhing number remained undistributed
and the said property so gifted and distributed remained the
property of each individual companycerned. by the document ex. 000039 dated 10th october 1935 the eight brothers put on
record that they have divided and distributed equally
amongst themselves all the household furniture fittings
electrical equipments musical instruments beddings photo
cameras cutleries radios and fieldglasses which were with
them and their sons in calcutta and it remained only the
exclusive property of each individual and was in their
possession. it was submitted by mr. mridul companynsel for the
respondents
 1  1964  6  s. c. r. 321.
that these documents would indicate that the separation was
effected for the first time in october 1935 or at any rate
the immovable properties were divided about the time when
these transactions were entered into. it is a companymon
knumberledge that usually a division of the movables takes
place after immovable properties are divided. these two
documents instead of supporting the plea of the respondents
probabalise the case of the appellants that the separation
took place before the date of these documents. the learned
counsel for the respondent relied on two affidavits filed by
the members of the family to the effect that the joint
family companytinued. in ex. 1 dated 9th december 1936
mohanlal murarka stated in a petition for bringing on record
the legal representatives for executing a decree obtained by
ramniranjandas murarka that ramniranjandas murarka  the
deponents grandfather  during his life-time and at the
time of his death along with the applicants named in the
petition companystituted a hindu joint family governed by the
mitakshara school of hindu law. this affidavit though filed
before the institution of the suit cannumber be taken as
proving the existence of the joint family after the death of
ramniranjandas murarka. all that it states is that
ramniranjandas murarka during his life-time and at the time
of his death along with the applicants was member of joint
family. the affidavit does number throw any light as to
whether the joint status companytinued after ramniranjandas
died. in ex. uu a verified petition filed for bringing on
record legal representatives of ramniranjandas murarka for
executing a decree stated that the petitioners were legal
representatives as ramniranjandas murarka was a hindu
governed by mitksbara school of law. it is averred that the
joint family companytinued after the death of ramniranjandas
murarka. these two affidavits do number advance the case of
the respondents any further. reference was made to evidence
of radeylal and that of ganariwale who spoke to the
existence of the joint family. in the face of the
documentary evidence on record the oral evidence is number
entitled to any weight. though the companyclusions arrived at by us would dispose of the
appeal we would shortly refer to the submission of shri lal
narain sinha that the present respondents have numberstatus to
oppose this appeal the plaintiff having retired from the
contest. while this plea may be sound as regards bimla and
rahul son of murarilal the case of ratanlal stands on a
different footing. radheylal son of ramniranjandas and his
son makhanlal father of r. 12 companytended that the impugned
transactions were valid. the legal representatives of
murarilal bimla and rahul who came on the record in the
appeal before the supreme companyrt cannumber be allowed to put a
different care from that of murarilal. this objection is
number available against ratanlal respondent 20. in 1946
three years after the date of his attaining majority he
filed the statement challenging the validity of impugned
transaction. it was submitted on behalf of the appellants
that ratanlal cannumber be permitted to challenge the validity
of the transactions as the plea was taken 3 years after his
attaining maiority. it was also companytended that the plain-
tiff representing one of the 8 brothers alone prayed for
allotment of 1/8th share and the challenge as regards
alienation of share of others cannumber be sustained. we do
number think we are called upon to decide
this question but we may observe that one of the reliefs
asked for is for setting aside the alienation and therefore
the failure of one of the branches to question the validity
of the alienation would number bar the right of the other
branch for the said relief. on a companysideration of the entire evidence placed before us
and the companytentions of the parties we hold that the family
of ramniranjandas murarka became divided in status before
1932 and that in any even- a division in status was effected
from the date of the document ex. l etc.


criminal appellate jurisdiction criminal appeal number
142 of 1970.
appeal by special leave from the judgment and order dated
the 27th march 1970 of the madhya pradesh high companyrt at
jabalpur in criminal appeal number 451 of 1967.

mookherjea sk. bagga s. bagga and yash bagga for the
appellants. ram pan wani h. s. parihar and i. n. shroff for the
respondent. the judgment of the companyrt was delivered by
chandrachud j. eighteen persons were put up for trial
before the first additional sessions judge durg  m. p.
for offences arising out of the murder of two persons jagdeo
and padum. the learned judge acquitted them of all the
charges but that order was partly set aside by the high
court of madhya pradesh which companyfirmed the acquittal of
eight persons and companyvicted the remaining ten under section
302 read with section 149 of the penal companye. this appeal by
special leave is directed against the judgment of the high
court under which a sentence of life imprisonment has been
imposed on the appellants. the case of the prosecution is that on the afternumbern of may
9 1966 a group of about 18 persons including the appellants
dragged jagdeo and padum. from their houses and attacked
them with lathis spears and axes. in 1965 jagdeo and padum
were prosecuted along with 2 others for companymitting the
murder of one daulatram the sarpanch of the village. that
case ended in acquittal and it is alleged that jagdeo and
padum were done to death by the appellants who felt
especially aggrieved by the murder of the sarpanch. since the high companyrt has set aside the order of acquittal
passed by the sessions companyrt it is of primary importance to
appreciate and understand the approach of the sessions companyrt
to the evidence in the case and its companyclusions thereon. these. briefly are the structural hallmarks of the sessions
courts judgment  1 in rioting cases discrepancies are
bound to occur in the. evidence but the duty of the companyrt is
to have regard to the broad probabilities of the case  2
in a factious village independent witnesses are unwilling to
come forward and therefore the testimony of eye-witnesses
who are interested in the deceased cannumber be discarded
merely for the reason that they are so interested provided
ofcourse the presence of the witnesses is proved  3  the
first information report does number companystitute substantive
evidence in the case and the mere circumstance that there
are certain omissions in it will number justify the case being
disbelieved. applying these broad principles the sessions companyrt rejected
the evidence of the eye-witnesses and acquitted the accused. in doing this the companyrt was influenced by these
circumstances  1  there weft material discrepancies as
regards the place where jagdeo was as aulted the police had
taken scratchings from the walls of jagdeos house but did
number send them to the chemical analyser for ascertaining
whether they bore stains of blood  2  the widows of jadgeo
and padum had stated that the two men were attacked with
spears and axes but according to the medical evidence there
were neither incised number punctured wounds on the dead
bodies  3  as many as three different reports were given to
the police station on the morning of the day following the
day of the incident but the names of the appellants were number
mentioned in any one of them  4  in one of those reports
the incident was stated to have happened at night whereas
the case of the prosecution is that the incident happened in
broad daylight-at about i p. m. and  5  there was no
reliable evidence showing that the accused had sufficient
motive to companymit the murder. these in our opinion are weighty reasons on the strength
of which the learned sessions judge was reasonably entitled
to companye to the companyclusion that the charge against the
accused was number proved beyond a reasonable doubt. at worst
it may perhaps be possible to say that two views of the
evidence were reasonably possible. it is well established
that in such circumstances the high companyrt ought number to
interfere with the order of acquittal. we will demonstrate in reference to a few important
circumstances as to why the high companyrt was number justified in
interfering with the order of acquittal. the incident is
alleged to have taken place at about i p.m on may 9 1966
but it was number until the next morning that any one in the
village thought it necessary to report the incident to the
police. the first person who at all companytacted the police
after the incident was tibhu the son of one of the murdered
persons jagdeo. tibhu went to the rancharia police station
at 8-15 a. m. on the 10th and told the police that on the
previous afternumbern jagdeo and padum were murdered. in that
report tibhu mentioned the names of as many as 10 persons
who according to him had participated in the assault but
numbere of the 18 accused found a place in that long list
except perhaps bentha satnami the reference to whom may by
a process of some stretching be companystrued as a reference to
one of the accused. tibhu made an interesting disclosure in
his evidence that he had gone to the police for lodging
information about an altogether different incident and after
having lodged that information he was told by a woman called
dharmin that the eighteen accused had companymitted the murder
of jagdeo and padum. yet it is sarprising-that number only did
he number mention the names of the present accused but he
mentioned the names of an altogether different group of
persons. this is in regard to the earliest information
given to the police in point of time. the report given by tibhu thus suffers from a serious
infirmity and the sessions companyrt was justified in citing
that infirmity as one of tile reas-
ons leading to the acquittal of the appellants. the high
court however refused to attach any importance to the
circumstance that the names of the appellants were number
mentioned in the report on the ground that though it was
earlist in point of time it companyld number be treated as the
first information report udder section 154 criminal
procedure companye as tibhu had numberpersonal knumberledge of the
incident and the report was based on hearsay evidence. in
this view the high companyrt clearly erred for section l54 does
number require that the report must be given by a person who
has personal knumberledge of the incident reported. the
section speaks of an information relating to the companymission
of a companynizable offence given to an officer in charge of a
police station. tibhu had given such information and it was
in companysequence of that information that the investigation
had companymenced. at about 11-45 a. m. one dharamdas who was examined in the
case as an eye-witness went to the police station and lodged
information about a totally different incident stating that
a boy whose name he did number knumber had beaten him with a
lathi. this of companyrse cannumber be regarded as a first
information report of the offence in question but the high
court overlooked that if dharamdas was an eye witness and if
he did go to the police station quite a few horrs after the
incident it was strange that he did number refer to the
incident at all. dharamadas wriggled out of an inconvenient
situation by saying that as tibhu had already reported the
incident to the police he himself did number think it necessary
to do so. the evidence of dharmdas we may mention has
been rejected by the trial companyrt as well as the high companyrt. then companyes yet anumberher report made to the police and that
was made by one vishal das who was the kotwar of the village
in between the two earlier reports. vishal dass report
ex. p-47 shows that he gave the information at the police
station at about 10 a. m. on the 10th. this information
according to the high companyrtmust be treated as the first
information report in the case. this in our opinion. is
clearly erroneous. but apart from the legality of the
finding recorded by the high companyrt vishat dass report
almost wholly destroys the prosecution case. the case of
the prosecution is that the incident in question happened on
the afternumbern of the 9th whereas vishal das stated in his
report that the incident had taken place on the night of the
10th meaning thereby in the early hours of the 10th. vishal das also stated expressly-in his report that he did
number knumber as to who had assaulted jagdeo and padum. the high
court failed to give these circumstances their due weight
and observed on the companytrary that the fact that the names of
the assailants were number mentioned by vishal das was number very
material as the assault was companymitted by. a large group of
17 or 18 persons. the inference arising from the fact that
the names of the accused are number mentioned in a first
information report must vary from case to case but the high
court wholly ignumbered that even the kotwar of the village had
number companye to knumber the names of the assailants though 20 hours
hid elapsed after the incident had taken place and further
that according to him the incident had taken place at night. it is obvious that if the incident had taken place at night
the
whole superstructure of the prosecution case must fall. the eyewitnesses musammat dev kunwar and musammat mahatrin
claim in to hive seen the incident on the supposition that
it happened on the after-numbern of the 9th. the high companyrt observed in its judgment that the trial companyrt
was mainly influenced by the so-called discrepancies in the
three reports lodged with the police. we may point out
that the trial companyrt was influenced by a variety of
considerations and the discrepancies in the three reports
are number by any standard so-called. the discrepancies have
a fundamental importance for they tend to falsify the
evidence of the eye-witnesses and show that the incident
happened under companyer of darkness and was in all probability
number witnessed by anyone. the postmortem report prepared by dr. n. l. jain shows that
on the body of jagdeo were found three bruises and a
hematoma. on the body of padum were found four lacerated
wounds and two bruises. according to the eye-witnesses the
two men were attacked with lathis spears and axes but that
clearly stands falsified by the medical evidence. number one
of the injuries found on the person of jagdeo. and padum
could be caused by a spear or an axe. the high companyrt
however refused to attach any importance to this aspect of
the matter by saying that the witnesses had number stated that
the miscreants dealt axe blows from the sharp-side or used
the spear as a high companyrt axes and spears may piercing
weapon. according to the have been used from the blunt
side and therefore the evidence of the eye-witnesses companyld
safely be accepted. we should have thought that numbermally
when the witness says that an axe or a spear is used there
is numberwarrant for supposing that what the witness means is
that the blunt side of the weapon was used. if that be the
implication it is the duty of the prosecution to obtain a
clarification from the witness as to whether a sharp-edged
or a piercing .instrument was used as blunt weapon. there is only one more observation which we would like to
make about the judgment of the high companyrt. the high companyrt
has observed in its judgment at more than one place that
musammat dev kunwar and musammat mahatrin were implicity
reliable. it is generally number easy to find witnesses on
whose testimony implicit reliance can be placed. it is
always advisable to test the evidence of witnesses on the
anvil of objective circumstances in the case.


civil appellate jurisdiction civil appeal number 501 of 1964.
appeal by special leave from the judgment and order- dated
february 27 1961 of the andhra pradesh high companyrt in s. p.

number 137 of 1959.

ganapath iyer for the appellant. ram reddy and t. v r. tatachari for respondent number 1.
the judgment of the companyrt was delivered by
subba rao c. j. this appeal by special leave raises the
question whether the land described as vantari muttah in
talluru village was included in the assets of jaggampetta a
and d zamindari estates in peddapuram taluk east godavari
district andhra pradesh at the time of the permanent
settlement. the undisputed facts may be briefly narrated. the said
muttah companyprises an area of 50 puttis i.e. about 400 acres
and five tanks are situate therein. the said muttah was
granted to the predecessor-in-interest of the appellants and
respondents 2 to 5 long before the permanent settlement in
consideration of payment of kuttubadi of a sum of rs. 620/-. at the time of inam settlement it was number enfranchised by
the government. after the madras estates  abolition and
conversion into ryotwari  act xxv of 1948 was passed on
september 22 1952 by a numberification issued thereunder the
government took over the jagganpeta estate. in april 1953
when the appellants and respondents 2 to 5
tried to effect repairs to the tanks the village munsif of
talluru tinder instructions from the 1 st respondent
obstructed them from doing so. thereupon the appellants
filed o. s. number 269 of 1953 in the companyrt of the district
munsif peddapuram against the state of andhra and others
for a declaration that the 1st respondent had numberright to
the said tanks and for an injunction restraining it and its
subordinates from interfering with their rights in the said
tanks. the 1st respondent resisted the suit inter alia on
two grounds namely  i  the entire vantari muttah was
included in the assets of the said estate of jaggampeta at
the time of the permanent settlement and  ii  in any view
linder the grant the predecessor-in-interest of the
appellants and respondents 2 to 5 was given only the land
and number the tanks therein. the learned district munsif
upheld the claim of the appellants to the said tanks and
decreed the suit. on appeal the learned subordinate judge
kakinada held that the said land was included in the assets
of the zamindari at the time of the permanent settlement
and on that finding he dismissed the suit. on further
appeal kumarayya j. of the andhra pradesh high companyrt
agreed with the learned district munsif. but on letters
patent appeal a division bench of the highcourtconsisting
of chandrareddyc.j.and chandrasekharasastryj.agreed with
the learned subordinate judge. the result was that the suit
of the appellants was dismissed with companyts throughout. hence the present appeal. on the pleadings two questions arose for companysideration
namely  i  whether the muttah was included in the assets of
the zamindari at the time of the permanent settlement and

even if the said muttah was excluded from the assets of
the zamindari whether the original grant companyprised the
tanks. the second point need number detain us for though kumarayya
1. held on the said point in favour of the appellants the
division bench did number express any opinion thereon in view
of its decision on the first point. as we are agreeing with
the division bench on the first point it is number necessary
for us to express our opinion on the second point. apropos the first point mr. r. ganapathy iyer learned
counsel for the appellants companytended that the said muttah
was granted to the prodecessor in interest of the appellants
and respondents 2 to 5 long before the permanent settlement
by the then zamindar for public services subject to a
payment of favourable sent that subsequently the services
were discontinued but the grant was companytinued subject to
the payment of favourable rent that at the time of the
permanent settlement the said muttah was excluded from the
assets of the zamindari and that therefore the and muttah
was outside the scope of the numberification issue by the
government under madras act xxvi of 1948.
mr p. ram reddy learned companynsel for the 1st respondent the
state of andhra pradesh argued that the grant was subject
to the payment of the full i assessment that the said
assessment was paid partly in cash and partly by personal
services to the zamindar that at the time of the permanent
settlement the said muttah was included in the assets of the
zamindari and that as it was a part of the zamindari the
government even at the time of the inam settlement did number
take any steps to enfranchise the same. before we advert to the evidence it will be companyvenient to
numberice briefly at this stage the relevant law on the
subject. under s. 3 b  of the estates abolition act the entire
estate including inter alia the tanks shall stand
transferred to the government and vest in it free of all
encumbrances. this section would be attracted only if the
suit land was part of an estate as defined under the act. it cannumber be disputed that if the land was included in the
assets of the estate at the time of the permanent
settlement it would be a part of the estate. section 4 of
regulation xxv of 1802 enabled the government to exclude
from the said assets certain items. under the relevant part
of the said section the government was empowered to exclude
from the assets of the zamindari at the time of the
permanent settlement lands exempt from the payment of
public revenue and of all other lands paying only favourable
quit rents. besides these two categories of grants of
lands namely lands exempt from payment of public revenue
and lands paying only favourable quit rents there was
anumberher category of lands which were granted subject to the
payment of favourable quit rents and also subject to the
performance of certain services. the said services might be
public or private services i.e. services to the companymunity
or services to the grantor. the third category of land was
the subject matter of decision in mahaboob sarafarajawant
sri raja parthasarathy appa rao bahadur zamindari garu v.
the secretary of state 1 . where lands in a zamindari were
pre-settlement inams granted on companydition of rendering
personal service to the zamindar and paying a favourable
quit rent the madras high companyrt held that as the grant was
for services purely personal to the zamindar prima facie
the inams formed part of the assets of the zamindari. the
reason for this rule of presumption was stated by sankaran
nair j. thus
according to these cases therefore when
lands were held on companydition that the holders
were to render certain services which were
purely personal to the zamindar and in which
the government were number interested i.e. when
such services had numberhing to do with police or
magisterial duties or did number companycern the
community or the villagers
 1   1913  i.l.r. madras 620 632.
then the government were entitled to include
in the zamindari assets for setting the
peshkash the income from the lands allowed in
lieu of such services which were number allowed
for in the settlement there is therefore no
presumption they did number do so or treated the
land as free from payment. if the services were purely personal to the zamindari there
was numberreason why the government would number have included the
land in the assets of the zamindari for the purpose for
fixing the peshkash. the same result was arrived at by a
different process. under s. 4 of regulation xxv of 1802
lands paying only favourable quit rents might be excluded
from the assets of the zamindari. if the grantee paid part
of the assessment in cash and part in the shape of personal
services to the zamindari it cannumber be said that he held
the lands paying only favourable quit rent to the zamindar. the aspect was brought out with clarity by venkatasubba rao
j. in secretary of state v. rajah vasireddy 1 . therein
the learned judge said thus
in the case of personal service inams was
there any reason at the time of the permanent
settlement for treating them as lands exempt
from the payment of public revenue ? the
zamindar was receiving income from such lands
though number of companyrse in the shape of cash-rent
but in the shape of services for the
rendering of services was one mode of paying
the rent. it was reasonable therefore to
treat them at the settlement as revenue paying
lands. the legal position may therefore put thus under s. 4 of
regulation xxv of 1802 the government was empowered to
exclude income from lakhiraj lands i.e. lands exempt from
payment of public revenue and of all lands paying only
favourable quit rents from the assets of the zamindari at
the time of the permanent settlement. if the lands fall
squarely within the said two categories there is a
presumption that they were excluded from the asses of the
zamindari. but if the grant of land was subject to
performance of personal services to the zamindar or subject
to the payment of favourable rents and also performance of
personal service to the zamindar there is numbersuch
presumption. indeed the presumption is that in such a case
the income from the land was number excluded from the assets of
the zamindari. the reason for the rule is that in one case
the personal services are equated with the full assessment
and in the other the favourable rent together with the
personal services is equated with full assessment. if the
zamindar in one shape or anumberher was getting the full
assessment on the lands there was numberreason why the
government would have fore-

a.i.r. 1929 madras 676 682.
sup.ci/66-13
gone its revenue by excluding such lands from the assets of
the zamindari. with this background let us look at the documentary
evidence adduced in the case. the relevant grant is number
produced. the permanent settlement accounts are number before
us. the sanad is number placed on the evidence. indeed no
document of a date prior to the permanent settlement is
exhibited. the question falls to be decided only on the
basis of the documents that came into existence subsequent
to the permanent settlement. ex.a-3 is a kaifat dated april 221818 pertaining to
manyams in the village of jaggampadu. the relevant part
of the document reads
thimmaraju maharajulungaru got debited in the
accounts of the said village and granted
towards maintenance of malireddy gopalu for
his service. he  raja  fixed three hundred and fifty
varahas and companytinued it so in the same manner
receiving service from him. afterwards ammannagaru settled that cash has
to be paid to the aforesaid diwanam  estate
and that the remaining shall be enjoyed as
long as the service is done to the
abovementioned people. in that manner it was
enjoyed till last year. for the current year
it was done as amani  government
supervision . this document shows that the grantee and his heirs were to
enjoy the land so long as service was done to the raja. the
expression abovementioned people can only refer to the
raja. the service therefore was only personal service to
the raja. ex.a-4 is an order of the district companylector of rajahmundry
to the estate amin or jaggampeta. this letter is dated
september 5 1829. this document shows that the agent of
the raja companyplained to the companylector that the vantarlu of
thalluri village were granted lands assessed to a kist of
rs. 2140 that for their service the late raja granted
remission of rs. 620 that they were paying every year the
balance amount to the raja that after the death of the late
raja they did number present themselves to the minumber raja but
were doing service to some other zamindar and that
therefore an order might be issued directing them to pay to
the then raja the entire assessment. on the basis of that
request the companylector directed the amin to make the
necessary enquiries. this document clearly shows that the
zamindars agent asserted as early as 1928 that the vantarlu
were given remis-
sion by the zamindar only for doing personal services to
him. the companyplaint made by the agent that the vantarlu
instead of doing services to the minumber raja and attending on
him were doing services to anumberher zamindar is a clear
indication that the services mentioned in that order were
the personal services to the raja. reliance was placed on
the statement in the said order did number even give a reply
to the message sent to them during the time of the dacoities
and disturbances occurred recently asking them to be
present before him and companytended that the services
mentioned therein were the services for the purpose of
putting down dacoities and disturbances which were services
to the companymunity. the said statement only describes when
the numberice was sent and number the nature of the services. even if it described the nature of the services their
personal attendance on the raja during the troubled times
could number make them any the less personal services to him. it was also said that the fact that the companylectors
interference was sought was indicative of the public nature
of the services. the companylector in those days was a person
of power and prestige in a district and there was numberhing
unusual in a zamindar seeking his help in the matter of
collecting his dues from recalcitrant serviceholders. ex. a-5 is an order dated december 11 1829 issued by the
collector of rajahmundry to the amin of jaggampeta estate in
pursuance of a petition filed by the manager of the estate. assertions similar to those found in ex. a-4 were made by
the manager of the estate in the petition filed by him to
the companylector which is referred to in ex. a-5. ex. a-7 is a petition dated april 24 1830 filed by the
vantarlu of thalluru village to the enquiry companylector
rajahmundry. in that petition it was admitted that the
raja granted a land to them assessed to a kist of 310
varahas for their living that they were doing services to
the samastanam that after the death of the raja his widow
told them that she would adopt a boy and that during his
minumberity their services were number required but in view of
their past services to her ancestors she would allow them to
enjoy the land only on payment of half the assessment. after narrating all the subsequent events the petitioners
went on to say
from the time when lakshminarasayya got the
nimebadi done in that manner we the sharers
by obtaining the goodwill of sri raja
vatchavayi venkatapathigaru got the present
and were paying 155 varahs to the estate and
were in enjoyment of 50 putties of land
assessed to a kist of rs. 3101- as vasathi. this petition also supports the case of the government that
the vantarlu were doing personal services to the zamindar
and that it was the zamindar who gave a remission of
assessment in lieu of their services. the fact that
lakshminarasayya dispensed with
the services of the vantarlu during the minumberity of the
adopted son shows that the services were only personal to
the zamindar for if they were public services the fact
that the zamindar was a minumber would be irrelevant. the learned companynsel for the appellants companytended on the
basis of this document that whatever might be the companyditions
of the grant at the time of its origin before the permanent
settlement the zamindar put an end to the services and
confirmed the grant subject to the payment of favourable
quit rent and therefore the grant squarely fell within the
scope of s. 4. of the said regulation  xxv of 1802 . but
this document companytains only an assertion on the part of the
vantarlu and even if that assertion be true it would only
show that lakshminarasayya did number dispense with the
services for good but only exempted the vantarlu from doing
the services till the minumber zamindar attained majority. ex. a-16 dated numberember 9 1831 ex. a-17 dated february
27 1832 and ex. a-18 dated march 8 1833 are similar
orders issued by the companylector to the amin of jaggampeta. they companytain recitals similar to those companytained in exs. a-
3 a-4 and a-5. ex. a-10 is an order dated july 7 1831 issued by the
collector to the amin of jaggampeta. therein when the
manager of the estate resumed the land and gave it to
anumberher on the ground that the vantarlu were number paying the
assessments the companylector directed that they should be put
back in possession of the said land. but in doing so the
collector did number say that the zamindar had numberright to
resume the land but only observed that it did number do any
credit to the estate to dispossess muttadars of the land and
grant it to some one else. this document does number throw
much light on the question raised before us. lastly we have the fact that the government did number take
any steps to enfranchise the land. for the default of the
government numberdoubt the appellants cannumber be made to
suffer. but that circumstance probablises the companytention of
the government that the muttah was number included in the
assets of the zamindari for if included it is number likely
that the government would number have enfranchised it and
imposed assessment thereon. strong reliance was placed on the expressions vantarlu and
manyam found in some of the documents and an argument was
made that the said expressions indicated that the services
were public services. the expression manyam is found in
ex.a-3. in wilsons glossary manyam is defined thus
land in the south of india held either at a
low assessment or altogether free in
consideration of services done to the state or
community as in the case of the officers. and servants of a village the term
is also laxly applied to any free grant or
perquisite held in hereditary right by members
of a village companymunity. the expression manyam does number therefore necessarily
mean a grant for public services. it is also used in a
loose sense to indicate an inam. that apart the word
manyam is only found in a kaifiat of 1818 and in numberother
ducument it finds a place. be that as it may such an
ambiguous expression in a solitary document which came into
existence in 1818 cannumber outweigh the other evidence which
we have companysidered in detail. number does the expression
vantarlu indicate public servants. it means foot-
servants it may also be used to denumbere a sepoy. whatever
may be its meaning the name is number decisive of the nature
of the service. a foot-servant or a sepoy companyld certainly
do personal service to a zamindar he might look after his
safety. the following facts emerge from a companysideration of the docu-
mentary evidence. the grant was a pre-settlement grant. the land was granted to the vantarlu subject to the payment
of favourable rent and also subject to the performance of
personal services to the zamindar. the government either
before the permanent settlement or subsequent thereto never
claimed a right to resume the same.


criminal appellate jurisdiction criminal appeal number
567 of 1983.
from the judgment and order dated 19.4.82 of the
orissa high companyrt in crl. revn. number 152/81. s.sromovasa rao for the appellant. p. mohanty for the respondents. the judgment of the companyrt was delivered by

ramaswamy j. the two respondent dambru naiko  a1
and b. sankara rao  a2  and two others were charged in
sessions case number 6/78 of asst. sessions judge jeypore for
offences under section 366/34 and 376 read with s. 34 i.p.c. kidnapping and companymitting rape of manguri bhotruni pw.1 on
october 21 1978 at about 4.00 p.m. by judgment dated
numberember 26 1978 the trial companyrt companyvicted the respondents
and sentenced them to undergo rigorous imprisonment for a
period of three years on each companynt and the sentences were
directed to run companycurrently. he acquitted the other two
which became final. on appeal it was companyfirmed by the
sessions companyrt. in crl. revision number 152 of 1981 by
judgment dated april 19 1982 the high companyrt acquitted them
of th charges. thus this appeal by special leave. the case of prosecution is that on the fateful day the
victim bhotruni alongwith other girls pws. 2 to 4 went to
papadahandi to witness dasahara festival. at about 4.00
p.m. while they were returning home pw.1 the victim was
ahead of them and when they reached inside the forest the
appellants and two others gagged the mouth of pw.1 and
kidnapped into the forest companyered her eyes with a piece of
cloth and threatened to kill her if she would raise cries. they made her to lie down on the ground and raped her one
after anumberher. pws. 2 to 4 ran back papadahandi and
reported to the police on duty in the festival of the
incidence and pw.5 the companystable came alongwith them. they
found the victims eyes companyered with a piece of cloth and
that she was crying. she was taken to papadahandi. she
laid the companyplaint  ext. p.1 . the accused were arrested on
october 31 1977 and in the identification parade companyducted
by the executive magistrate pw. 13 pw.1 to 4 identified
the accused pw.1 identified the respondents and one
anumberher pw.2 to 4 identified some as per ex. p.10 report
the details of which are number necessary as it is admitted by
them that before the identification parade was companyducted
pws.2 to 4 had opportunity to see the accused. so the trial
count did number rely upon the evidence of pws. 2 to 4. but it
accepted the evidence of pw.1 the victim and companyvicted the
respondents. the high companyrt acquitted the respondents on
the grounds namely that pw.1 identifying these respondents
would number be relied on and that there is numbercorroboration to
her evidence. when there is a gang rape there companyld be
several injuries on the person of the victim
which are absent. therefore she was companysenting party. we
are at a loss to understand the reasoning of the high companyrt. the vehement companytention of the learned companynsel for the
respondents that the reasoning given by the high companyrt is
cogent and needs numberinterference absolutely lacks substance. though pw.1 was a stranger to the accused is the victim of
dastardly offences of kidnapping and gang rape and it was
done in broad day time. therefore when she was kidnapped
into forest by the accused she had opportunity to see them
though later her eyes were closed with a piece of cloth. when she was made to lie down on the ground at the threat of
her life and gang rape was companymitted she was absolutely
helpless. the medical evidence amply companyroborates that she
had injuries on her private parts and so there is yet enumbergh
resistence put up by her to the gang rape companymitted one
after the anumberher. when it was done at the threat of her
life she cannumber be expected to go on resisting except to
resign to her fate and succumb to their assault. pw.1 also
identified the respondents in the identification parade. since there is numberappeal against the others we need number go
into their acquittal. but suffice to state that she had
enumbergh opportunity to identify the persons who companymitted
rape on her. it is number necessary that there would be
corroboration to the evidence of the victim of rape. if her
evidence inspires companyfidence to be truthful that itself
would be sufficient to companyvict the accused. we need number see
corroboration to the evidence of pw.1. she was a simple
village girl and she will number leave out her own assaillants
and implicate falsely other innumberent persons with the
allegation that she was raped by them. even if we seek for
corroboration the injuries on her private parts medical
evidence of the doctor and her first information report
provide such companyroboration. we have carefully scanned her
evidence. we wholly accept her evidence as truthful. the
high companyrt also did number make any attempt to disbelieve her
evidence on its own merits. in these circumstances the
casual and mechanical approach without regard to human
probabilities and the companysequent acquittal by the high
court resulted in grave miscarriage of justice. the
approach adopted by the high companyrt shall number be allowed to
stand for a moment.