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PETITIONER: SMT. <NAME> Vs. RESPONDENT: <NAME> KONJALGI DATE OF JUDGMENT23/04/1976 BENCH: <NAME>, SYED MURTAZA BENCH: <NAME>, SYED MURTAZA GUPTA, A.C. CITATION: 1976 AIR 1947 1976 SCR 123 1976 SCC (3) 736 CITATOR INFO : R 1978 SC1568 (5,9) F 1983 SC 67 (8) R 1984 SC 718 (31) R 1985 SC 628 (55,68) RF 1989 SC 885 (7) RF 1992 SC 604 (103) F 1992 SC1894 (8) ACT: Code of Criminal Procedure, ss. 202, 204-Enquiry under s. 202-Scope of -Accused if had locus standi. HEADNOTE: The appellant filed a complaint before the Magistrate alleging that the police did not deliberately charge-sheet unrespondents 1 and 2 despite the fact that they abetted in the murder of her son because they were influential persons. After the inquiry the Magistrate issued a process to respondents 1 under 2 under s. 204(1)(b) of the Code of Criminal Procedure, 1973. The revision petition of respondents I and 2 filed under s. 482 . was allowed by <ORG>. in appeal to this Court it was contended for. the appellant that <ORG> was in error in examining the order of the Magistrate on merits after taking into consideration the documents filed by the respondents, which did not form part of the complaint or evidence recorded in support thereof before the Magistrate. Allowing the appeal, ^ HELD: The order of <ORG> suffers from a serious legal infirmity and <ORG> has exceeded its jurisdiction in interfering in revision by question the order of the Magistrate. [129 H] (1) In the following cases an order or the Magistrate can be quashed or set aside: (a) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (b) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused. (c) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (d) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like. [128 C-E] (2) (a) At the stage of issuing the process the Magistrate is mainly concerned with allegations made in the complaint or the evidence led and he is only. to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. The scope of the inquiry under s. 202 . is extremely limited -limited to the ascertainment of the truth or falsehood of the allegations made in the complaint: (1) on the materials placed by the complainant before the court (ii) for the limited purpose of finding out whether a prima facie case for issue of process had been made out and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. In proceedings under s. 202 the accused has got absolutely no locus standing and is not entitled to be heard on the question whether the process should be issued against him or not. [126 F; 127 E-F] 124 <CITATION> ,  1 S.C.R. 63.9 and <CITATION> ,  1 S.C.R. 1. followed. (b) In coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in evidence led by the complainant in support of the allegations. Once the Magistrate has exercised judicially the discretion given to him it is not for <ORG> or even this Court to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations are totally foreign to the scope and ambit of inquiry under 5. 202 of the Code of Criminal Procedure, which culminates in an order under s. 204 of the Code. [127G-H; 128A-B] (3) In the instant case <ORG> should not have quashed the proceedings. The order of the Magistrate was a reasoned one which took into consideration the allegations in the complaint as also the evidence adduced in support of it. It was not a case where the Magistrate had passed an order ill a mechanical manner or just by way of routine. <ORG> could not to into this matter in its revisional jurisdiction which is a very limited one. [ 128 F-G] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 99 of 1976.

Appeal by Special Leave from the Judgment and order dated 16-12-75 of <ORG> in Criminal Petition No. 50 of 1975.

<NAME> and <NAME> for the Appellant. <NAME>, (Mrs.) <NAME>, <NAME>, and <NAME> for Respondents I and 2.

<NAME> for Respondent No. 3.

The Judgment of the Court was delivered by <NAME>, J. This appeal by special leave is directed against the judgment of <ORG> by which it set aside the order of the Additional Judicial Magistrate, First Class, Gokak issuing process against respondents 1 & 2 in exercise of his discretion under s. 204 of the Code of Criminal Procedure. The facts of the case lie within a very narrow compass and although <ORG> has taken great pains to write a laboured judgment the point involved is short and simple and does not merit a detailed discussion. The police of Gokak Police Station submitted a charge-sheet against <NAME> and seven others under ss. 302 , 114 , 148 , 147 and other sections on the allegations that on July 19, 1973 the accused persons had waylaid and murdered one <NAME> son of the appellant in this Court. The appellant, who had filed the report before the police does not appear to have bean satisfied with the investigation by the police which according to her was tainted and had suppressed some important materials, filed a complaint before the Magistrate at Gokak on October 4, 1973 alleging that respondents 1 & 2 had in fact abetted the offence of murder committed by the other accused but as they were influential persons their names were deliberately left out in the report as also in the dying declaration. On receiving the complaint on October 4, 1973 the Magistrate decided to hold an inquiry into the complaint himself and in pursuance of his decision he recorded some evidence on October 8, 1973. Thereafter the case was posted for October 10, 1973 for arguments and further evidence, if any. On October 10, 1973 the Magistrate observed that six witnesses had been examined and the evidence recorded so far was sufficient for the Court to determine the question as to whether or not process should be issued to respondents 1 & 2. He then adjourned the case for argument for October 12, 1973. On that day arguments were heard but before any order could be passed the Magistrate who had recorded the evidence was transferred and therefore the case had to be adjourned. The new Magistrate took up the matter on November 26, 1973 and after hearing the complainant he adjourned the case to December 3, 1973 and on this day he directed that further inquiry may be made by Superintendent of Police, <NAME> and he accordingly referred the matter for inquiry and report to <NAME>, <NAME> asking him to submit his report within six weeks. It seems to us that in view of the change of the Magistrate the successor Magistrate was not able to grasp the implications of the proceedings which had been taken by . his predecessor who had in fact first decided to hold an inquiry himself and after recording the evidence had decided to pass an order under s. 204 of the Code of Criminal Procedure. Before however he could pass any order he was succeeded by the present Magistrate. The appellant filed an application in revision to <ORG> on December 11, 1973 against the order of the Magistrate dated December 3, 1973 referring the matter to <NAME> for inquiry and report. While the application was pending before <ORG>, respondents 1 & 2 filed a petition before <ORG> praying for an early hearing of the revision and for vacation of the stay order. Along with this petition the respondents filed a number of documents including the copies of the petitions sent by the appellant to the Chief Minister and the Speaker. We might indicate here that there was absolutely no occasion for the respondents to have filed the documents before <ORG> in a miscellaneous petition nor did they obtain any permission of the Court for filing those documents. <ORG>, after hearing the revision application filed be the appellant, allowed the same mainly on the ground that as the Magistrate had ultimately decided to hold an inquiry into the truth or falsehood of the complaint himself he had no jurisdiction to stop that inquiry and then make a reference to the police afresh. <ORG> accordingly quashed the order of the Magistrate and directed him to decide the case in accordance with the law after recording further evidence, if any. It appears that <ORG> did not give any directions to the Magistrate for considering the documents which had been filed by the respondents before it but by a subsequent order merely forwarded the documents to the Magistrate. The papers were sent back to the Magistrate on January 7, 1975 and by his order dated January 27, 1975 the Magistrate was informed that the appellant did not want to adduce any further evidence. The matter was accordingly posted for argument on February 7, 1975 and after hearing the arguments and considering the evidence recorded by the Magistrate he by his order dated February 11, 1975 directed process to be issued against respondents 1 & 2 under s. 204(1) (b) of the Code of Criminal Procedure. Respondents 1 & 2 then preferred a revision against this order to <ORG> under s. 482 of the Code of Criminal Procedure praying that the order of the Magistrate may be quashed. This revision was allowed by <ORG> by the impugned order against which special leave was granted by this Court at the instance of the appellant.

In support of the appeal Mr. <NAME> submitted that the Magistrate had given cogent reasons for holding that there were sufficient grounds for proceeding against respondents 1 & 2 and <ORG> was in error in interfering with the order of the Magistrate by examining the merits of the case after taking into consideration the documents filed by the respondents which could not be looked into by the Magistrate as they did not form part of the complaint or the evidence recorded in support thereof. In our opinion the contention raised by the learned counsel for the appellant is well-founded and must prevail. Mr. <NAME> sought to repel the argument of the appellant on the ground that the order of the Magistrate was perverse and as the case was full of patent absurdities and was politically motivated the prosecution of respondents 1 & 2 would amount to unnecessary harassment resulting in abuse of the process of the <ORG>. In the view we take in the instant case it is not necessary for us to enter into the merits of the case at this stage. It is well settled by a long catena of decisions of this <ORG> that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It is not the province of the Magistrate to enter into a detailed discussion of the merits or demerits of the case nor can <ORG> go into this matter in its revisional jurisdiction which is a very limited one.

<CITATION> (1) this Court had after fully considering the matter observed as follows:

"The courts have also pointed out in these cases that what the Magistrate has to see is whether there is evidence in support of the allegations of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned Judges in some of these cases have been at pains to observe that an enquiry under s. 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-s. (1) of s. 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant (1) (1964)1 S. C. R. 639, 648 and the statements made before him by persons examined at the instance of the complainant."

Indicating the scope, ambit of s. 202 of the Code of Criminal Procedure this <ORG> in <CITATION> (1) observed as follows:

" Section 202 says that the Magistrate may, if he thinks lit, for reasons to be recorded in writing, postpone the issue of process for compelling the attendance of the person complained against and direct an inquiry for the purpose of ascertaining the truth or falsehood of the complaint; in other words, the scope of an inquiry under the section is limited to finding out the truth or falsehood of the complaint in order to determine the question of the issue of process. The inquiry is for the purpose of ascertaining the truth or falsehood of the complaint; that is, for ascertaining whether there is evidence in support of the complaint so as to justify. the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage; for the person complained against can` be legally called upon to answer; the accusation made against him only when a process has issued and he is put on trial."

It would thus be clear from the two decisions of this <ORG> that the scope of the inquiry under s. 202 of the. Code of Criminal Procedure is extremely limited-limited only to the ascertainment of the truth of falsehood, of the allegations made in the complaint-(1) on the materials placed by the complaint before the <ORG>. (ii) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; and (iii) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that, the accused may have. In fact it is well settled that in proceedings under s. 202 the accused has got absolutely no locus us standi and is not entitled to be heard on the question whether the process should be issued against him or not.

Mr. <NAME> laid great stress on the words "the truth or falsehood of the complaint" and contended that in determining whether the complaint is false the Court can go into the question of the broad probabilities of the case or intrinsic infirmities appearing in the evidence. It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant ill support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercise his discretion it is not for (1) [1961] 1 S. C. R. 1, 9.

<ORG>, or even this <ORG>, to substitute its own discretion for. that of the Magistrate or to examine the case on merits with view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under s. 202 of the Code of Criminal Procedure which culminates into an order under s. 2042 of the Code . Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does net disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and .

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where <ORG> can quash proceedings.

Applying these principles to the facts of facts present case it seems to US that the present case is not one in which <ORG> should have quashed the proceedings. To begin with, the order of the Magistrate dated February 11, 1975 issuing process against respondents 1 and `2 is a very well reasoned one which takes into consideration the allegations in the complaint as also the evidence adduced in support of it. The Magistrate clearly applied his mind and has analysed the evidence into three categories-(1) those witnesses who have deposed as eye witnesses regarding the actual occurrence and the part attributed to respondents 1 and 2. The Magistrate then refers to other witnesses who corroborated the evidence of the complainant, and thirdly the Magistrate relied on the evidence of witnesses who were admittedly signatories to the dying declaration and had clearly stated on oath that the names of respondents 1 and 2 were mentioned in their presence by the deceased but were not recorded by the Police <NAME> in the dying declaration and in spite of the protest by the witnesses they were made to sign the dying declaration as attesting witnesses under threat and duress. On a consideration of this evidence the Magistrate was satis-

fied that a prima facie case against respondents 1 and 2 was made out and he accordingly issued process against them. It was not a case where the Magistrate had passed an order issuing process In a mechanical manner or just by way of routine. <ORG> appears to have gone into the whole history of the case, examined the merits of the evidence, the contradictions and what it called the improbabilities and after a detailed discussion not only of the materials produced before the Magistrate but also of the document which had been filed by the defence and which should not have been looked into at the stage when the matter was pending under s. 202 , has held that the order of the Magistrate was illegal and was fit to be quashed. In the first place <ORG> ought not to have considered the document filed by respondents 1 and 2 in the previous revision without obtaining the permission of the Court and` particularly when <ORG> itself gave no directions whatsoever to the Magistrate to consider those documents. In fact the Magistrate considering the question as to whether process should be issued against the accused or not cannot be into the materials placed by the accused and therefore <ORG> could not have given any such directions while disposing of the previous, revision. The impugned order of <ORG> proceeds on the basis that it was incumbent on the Magistrate to have considered the documents and their effect on the truth or falsehood of the allegations made by the complainant. This was an entirely wrong approach As we arc clearly of the opinion that the Magistrate was fully justified in completely excluding the documents from consideration, we refrain from making any observation regarding the, effect of those documents. In fact the documents filed by the respondents were mere copies and they were, therefore, not admissible. At any rate, at the stage of s. 202 , or s. 204 of the Code of Criminal Procedure as the accused had no locus standi the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them. Indeed if the documents or the evidence produced by the accused is allowed to be taken by the Magistrate then an inquiry under s. 202 would have to be converted into a full dress trial defeating the very object for which this section has been engrafted he <ORG> in quashing the order of the Magistrate completely failed. to consider the limited scope of an inquiry under s. 202 . Having gone through the order of the Magistrate we do not find any error or law committed by him. The Magistrate was exercises' his discretion and has given cogent reasons for his conclusion. Whether the reasons were, good or bad, sufficient or insufficient, is not a matter which could have been examined by <ORG> ill revision. We are constrained to observe that <ORG> went out of its way write a laboured judgment highlighting certain aspect of the case of the accused as appearing from the documents filed 'of them which they were not entitled to file and which were not entitled in law to be considered.

For these reasons, therefore, we arc satisfied that the order of <ORG> suffers from a serious legal infirmity and <ORG> 11-833 SCI/76 has exceeded its jurisdiction in interfering in revision by quashing the order of the Magistrate. We, therefore, allow the appeal, set aside the order of <ORG> dated December 16, 1975 and restore the order of the Magistrate issuing process against respondents 1 and 2.

At the time of granting the special leave, we has directed the <NAME> Judge who was trying the original case resulting from the F.I.R. lodged before the police to stay proceedings to the extent that the judgment was not to be pronounced until this appeal was disposed of. We understand that the <NAME> case is now concluded before the learned <NAME> Judge and arguments have also been heard. 1 view of the order of the Magistrate issuing process against respondents 1 and 2 which has been confirmed by us, the respondents will have to face a supplementary trial and it is not conducive in the interests of justice to allow the other trial to be stayed any further. The <NAME> Judge is therefore directed to dispose of the <NAME> Case and the stay granted by this <ORG> earlier is Vacated.

Appeal allowed.


JUDGMENT <NAME>, Kt., C.J.

1. The plaintiffs sued for a declaration against the Secretary of <ORG> and one Sanava kom Shiddangowda, that they, and not Sanava, were the Watandars of Nagwand Patilki watan, and for a permanent injunction restraining defendants Nos. 1 and 2 from recovering from plaintiffs more than assessment or judi payable on watan lands and for costs of the suit.

2. It is stated in the plaint that prior to 1812 four persons of defendant No. 2's family had owned half the Patilki watan of the village of Nagwand. But they left Nagwand for good and began to live in Mysore territory. Their watan lands remained uncultivated and thus lay fallow. Judi to the then <ORG> remained unpaid by them. In these circumstances, the then <ORG>, with a view to realize the judi due to it upon those lands, granted the Patilki watan to one <NAME> the ancestor of the present plaintiffs, hereditarily at a reduced rate of judi for seven years. This <NAME> represented to the then <ORG> that the original house of the Patilki watan was situated near <NAME>' houses and lie being a Lingayat could not live in it. Upon this the <ORG> were pleased to grant, in lieu of the house, another house and open space to <NAME>, and also granted a <ORG> for lands, i.e., deed of grant in 1812, in favour of <NAME>. So, by the <ORG> of 1812, the family of the present plaintiffs acquired half the Gowdki watan of Nagwand village, and similarly the family of defendant No. 2 ceased to be Watandars of the same watan. Since then the plaintiffs' family as Watandars of the Nagwand Gowdki watan had been in possession and enjoyment of the Patilki watan house and Patilki watan lands R Survey Nos. 94 and 95 of Nagwand village uptil now. In 1907, the present defendant No. 2 moved the revenue authorities to restore these watan lands to her under the Watan Act, but ultimately the Prant Officer rejected her application by an order, dated September 19, 1907. In 1919, the present defendant No. 2 again moved the revenue authorities, and finally the Commissioner S. D. passed, on May 17, 1921, an order that he did not consider it, necessary to cancel the Prant Officer's order, dated September 19, 1907. But, again, on July 24,1921, defendant No. 2, by an application, moved the Commissioner S. D, to revise his own order dated May 17, 1921, and, on November 30, 1921, the Commissioner passed the order that, under Section 8(2) of the Watan Act, the Collector should pass such order as he thought fit regarding the rent to be paid on <ORG>. 94 and 95 of Nagwand village by plaintiffs to defendant No. 2.The Collector, accordingly, passed, on March 3, 1922, the order that the fair rent of Rs. 280 should be recovered from the plaintiffs and paid to defendant No. 2 so long as the plaintiffs continued to be in possession of these lands. Upon this the plaintiffs appealed to the Local <ORG>, but it refused to interfere. The plaintiffs prayed (a) that the <ORG> should declare that the plaintiffs are Watandars of the Nagwand Patilki watan, and that defendant No. 2 is not Watandar of the same watan; and (b) that the <ORG> should issue a permanent injunction to defendants Nos. 1 and 2 that they should not recover from the plaintiffs more than assessment or judi payable on watan lands <ORG>. 94 and 9a of Nagwand village.

3. Defendant No. 1 pleaded that the Court had no jurisdiction to take cognizance of the suit, under Section 4 (a) of the Bombay Revenue Jurisdiction Act, 1876; that the suit was barred by limitation under Article 120 of the Indian Limitation Act ; that the cause of action arose in 18S0 when the request of the plaintiffs' predecessor-in-title to be declared a Watandar was rejected; that it also arose in 1870 when, during an inquiry held for the determination of the custom of the watan as to service and the appointment of a representative Watandar, it was decided that the plaintiffs' predecessor-in-title was not a representative Watandar but held the watan land as tenant only; that the allegation in paragraph 7 of the plaint that the cause of action arose in 1921 was not true; that the allegations in paragraphs and 2 of the plaint that in 1812 the Patilki watan land in dispute was granted to the plaintiffs' ancestor was not true and was denied; that it was also denied that, in 1812 or at any time thereafter, the ancestor of defendant No. 2 ceased to be the Watandar or that the plaintiffs' ancestor was appointed and recognised as a Watandar of the Patilki watan in dispute.

4. It was also pleaded that the plaintiffs' ancestors were throughout in possession of the land as the tenants of defendant No. 2's ancestors to whom the land in dispute was assigned as remuneration for the Patilki office of Nagwand.

5. The District Judge held that the second relief claimed for an injunction clearly fell within the provisions of the Bombay Revenue Jurisdiction Act. It was a suit to set aside or avoid the order passed by the Collector, on March 3, 1922, in obedience to the Commissioner's request of November 30, 1921. That order was expressly made under Section 9 (2) of the Watan Act. It was made by an officer duly authorized in that behalf and such a suit was within the prohibition of Section 4(a)(3) of the Bombay Revenue Jurisdiction Act.

6. With regard to the first relief, the Judge thought that a more, difficult question was raised. He came to the conclusion that "when an order is made on a specific decision, such as ia contained in Exhibit 36, that a person is not a Watandar, a person seeking to obtain a declaration from a civil <ORG> that the decision is bad certainly seeks to avoid that order," and; accordingly the suit was dismissed with costs.

7. The plaintiffs have appealed. Pending the appeal <NAME> died and one <NAME> was placed on the record as her heir. But we are told now that <NAME> does not claim to be the heir of <NAME>, and, if it were necessary, the appeal would have to be adjourned for the purpose of amending the record, But if the District Judge was right in dismissing the suit for want of jurisdiction, then there would be no necessity for adjourning the appeal.

8. It has been argued that the order made by the Commissioner, on November 30, 1921, to the Collector was ultra vires, as he had no power to revise his own order of May 17, 1921. But it would appear from the record of the proceedings before the Commissioner on that date, that they were ex parte without hearing <NAME>, and the Commissioner admitted that as <NAME> had not been given full opportunity of representing her case, he reconsidered the matter on November 30, 1921, after hearing pleaders for <NAME> and for respondents, the present appellants.

9. We do not think that those proceedings were ultra vires. It is a general principle that a party against whom an order ex parte is made is entitled to have the matter decided after arguments on both sides have been heard, so that the order passed by the Commissioner on November 30, 1921, was not, properly speaking, an order passed in revision, but an order properly made after hearing both the parties, one of whom had not been heard on the previous occasion, The Commissioner has given his reasons for holding that the present appellants were not Watan-dars. He referred particularly to the Kararpatra of 1866 by which the respondents' predecessor agreed to restore the whole of the watan land to the Watandars excepting one field which he was to retain as tenant for five years, i. e,, till 1871. That field is identical with the two Survey Numbers now in suit.

10. It has, therefore, been held by the Commissioner that there had been an alienation which showed that the appellants were not Watandars, and had never attained to any higher title to the said land than that of tenants.

11. We agree with the District Judge that this Court has no jurisdiction to set aside orders made under Sections 11 and 11A and Section 9 (2) of the Watan Act.

12. But it is contended by the plaintiff's that they would be entitled to ask the <ORG> to grant them the declaration they asked for in the plaint, that they, and not defendant No. 2, are the Watandars of the watan in question, as against defendant No.2, leaving out of consideration defendant No. 1. In the first place, that would be striking out the main relief asked for in the plaint against both the defendants, and would also entirely change the character of the suit. Secondly, as the suit has been dismissed for want of jurisdiction, that does not bar the plaintiffs from bringing any other suit, which they may be advised, against the heirs of the original defandant No. 2. We say nothing with regard to the question whether such a suit would lie, But we think that, as long as the Secretary of <ORG> is a party to the suit, such a declaration could not be granted.

13. In Phadnis' Vatan Act (3rd Edn.) at p. 461, reference is made to an unreported decision in <NAME> v. <NAME> (1920) F.A. No. 269 of 1918 in which <NAME> said :-

In my opinion, when an order is baaed on a specific decision that a person is not a Watandar, a person seeking to obtain a declaration from <ORG> that that decision is bad. certainly seeks to avoid that order,...Accordingly, the case clearly falls within the 3rd paragraph of Clause (a) of Section 4 (of the Revenue Jurisdiction Act) Also so far as the suit seeks relief against Government relating to Watan land it falls within the that paragraph of that clause-We were referred...to the decision in <CITATION> (1896) P.J. 666....It was there argued that the Secretary of <ORG> was merely a formal party and that it was merely a contest between two private parties. No doubt, if that is the case in a auit, then the 3rd paragraph of Clause (a) of b. 4,.,does not come in the way of the plaintiff; and,... the decisions of this Court that <ORG> has jurisdiction to entertain a suit to be declared a Watandar are really confined to cases of that class. In the leading case of <NAME> v. <NAME> (1883) I.L.R. 8 Bom. 25, there had apparently been no order against the plaintiff passed fay the Collector and it was merely a private dispute between the plaintiff and certain persons who denied plaintiff's status as a Watandar.

14. We agree with the conclusions arrived at by the learned Judges in that case.

15. Here the Commissioner has come to the conclusion that the appellants are not Watandars, and if we were to deal with the case as if the Secretary of <ORG> were not a party, and there was merely a private dispute between the appellants and defendant No. 2 as to whether the plaintiffs were Watandars, we should be in effect passing judgment on the decision of the Commissioner, and oven if we were of opinion that the plaintiffs were Watandara, our decision would be of no value whatever to the plaintiffs as against <ORG>.

16. We see no reason, therefore, why we should alter the character of the suit which is, we think, beyond the jurisdiction of the <ORG>, in order to enable the plaintiffs to try and obtain what, as far as we can see, would be an entirely useless declaration. If, as a matter of fact, they are able to prove that the Kararpatra of 1866 was a forgery, then that might be of some assistance to them in prosecuting their claim for the declaration they ask for against defendant No. 2. That is a matter, however, with which we are not concerned in this suit. Therefore, we dismiss the appeal with costs. Two sets of costs.


JUDGMENT

1. It is contended that, as an appeal lies from the order made by the District Judge, the appellant's petition under Section 622 was not maintainable, and that, therefore, it was properly rejected. It must be conceded that the order is appealable under Section 244 of the Code of Civil Procedure--<NAME> v. Panqtmni I.L.R., 12 Mad., 454 and <NAME> v. Appasami I.L.R., 13 Mad., 504.

2. It is urged on behalf of respondent that as he is not an assignee of the decree, but one who attached it under Section 273, the above rulings are not applicable. This, however, makes no difference in principle, as one who attaches a decree is the decree-holder's representative within the meaning of Section 244, as was also held by <ORG> in <CITATION> ., 15 Cal., 371.

3. It is further contended that the objection that the District Judge's order is appealable was not urged before the learned Judge or before us when we made our former order. This is true; but the objection is one that goes to the jurisdiction of the <ORG> to interfere at all under Section 622. We must, therefore, entertain the objection.

4. The learned Judge's order dismissing the petition was, therefore, correct; but it should have proceeded on the ground that the application under Section 622 could not be entertained, the order objected to being appealable.

5. We dismiss this appeal, but, under the circumstances, without costs.


ORDER

1. Mr. <NAME>, learned Counsel for the State of Jammu & Kashmir has placed on record a copy of the teleprinter message from the concerned authority dated August 30, 1984 informing him that Mr. <NAME> the detenu, whose detention has been challenged in this Writ Petition under Article 32 of the Constitution has been released on August 24, 1984. This teleprinter message is followed by a letter confirming the same. Mr. <NAME>, learned Counsel has authenticated the letter as well as the teleprinter message, and placed them on record.

2. Mrs. <NAME>, learned Counsel for the petitioner and a member of the working committee of <ORG> has filed this writ petition for writ of Habeas Corpus questioning the validity of the detention of <NAME>, who is a sitting Member of <ORG> of Jammu & Kashmir <ORG>. When the letter and teleprinter message were shown to Mrs. <NAME>, she said that Mr. <NAME> has not been released because she had contacted all the possible sources enquiring about the release of the petitioner, but he could not be contacted and therefore there is reason to believe that the statement made by Mr. <NAME> is not correct. We are not persuaded to accept this submission because it is difficult to believe that the <ORG> would make through its learned Counsel a wholly false statement in respect of a detenu.

3. The petitioner is at liberty to take other steps if the petitioner is not released as stated by the learned Counsel.

4. This petition has become infructuous and stands disposed of accordingly.


JUDGMENT <NAME>, J.

1. This is an appeal by the plaintiffs in the suit against a judgment and two decrees of <ORG>, dated October 18,1928, which reversed the decree of the Subordinate Judge dated January 17, 1928, as amended by his order dated March 8, 192i8.

2. The suit was brought by <NAME> and his sister <NAME> against their lull and half-brothers and sisters, their mother <NAME>, and <NAME>, the wife of <NAME>, defendant No. 4.

3. The relationship between the parties to the suit appears from the pedigree which was attached to the judgment of <ORG>, and which is as follows.

4. The suit was brought for a declaration that an agreement dated March 25, 1912, and an award dated April 2, 1912, were null and void and inoperative, and for a partition of certain properties alleged to have been the properties of the plaintiffs' father, <NAME>.

5. The learned Subordinate Judge, who tried the suit; made a decree in the plaintiffs' favour : this decree was subsequently amended on an application for review, and it was thereby directed that the plaintiffs should got from defendant No. 4 (i.e., <NAME>) a 21/l04ths share, first, out of the sum of Rs. 25,526, being the capitalised value of a factory, and, secondly, a declaration of their rights to that extent out of the property No. 10 of the plaint list A, in so far as it was left:-

...after meeting claims of the original owners and the acquisition by <ORG>, and also out of the property No. 21) of the list, which is a family graveyard. Possession over the share-out of the property No. 10 can be obtained only after redemption of the mortgage assigned to defendant No. 4 (vide Exhibit 11), the trust compensation money being taken to have satisfied pro rata a part of this mortgage debt.

Plaintiffs shall further get interest on the amount under the first head at the rate of Rs. 12 per cent. per annum from March 4, 1912, to the date of realisation. Costs on parties, A preliminary decree for partition to be prepared in those terms.

6. From this decree both <NAME>, defendant No. 4, and the plaintiffs appealed to <ORG>.

7. The learned Judges of <ORG> allowed the appeal of <NAME> and dismissed the appeal of the plaintiff's. The result was that the plaintiffs' suit was dismissed, <ORG> directing that the parties should bear their own costs in both Courts.

8. These are the decrees from which the plaintiffs have appealed to His Majesty in Council.

9. <NAME> has died since the decree of <ORG> was made, and his representatives are now on the record, and they are the only respondents contesting this appeal. The material facts are as follows:-

<NAME>, the father of the plaintiffs and of defendants Nos. 1 to 6, died on March 4, 1912.

10. On March 25, 1912, an agreement of reference to arbitration was executed by <NAME> (defendant No. 4), his two sisters (defendants Nos. 5 and 6), and <NAME> (defendant No. 7), who was the surviving widow of <NAME>, and the mother of the plaintiffs and defendants Nos. 1, 2 and 3.

11. The plaintiffs and defendants Nos. 1, 2 and 3 were minors at the date of the agreement, and their mother purported to execute the agreement for herself in person and as guardian in the capacity " of the real mother " on behalf of the plaintiffs and her other minor children. By the said agreement all matters in dispute were referred to two arbitrators and an umpire, who were named in the said agreement,

12. One of the issues raised at the trial was as follows:-

(1) Did <NAME> constitute the defendant No. 7 as guardian of the person and property of plaintiffs as well as of defendants Nos. 1 to 3. If so with what effect.

13. This issue was answered in the negative by the learned Subordinate Judge, and his decision in this respect was approved by <ORG>.

14. It has not been argued before the <ORG> that these findings were wrong, and the appeal must therefore be decided upon the assumption that <NAME> was not appointed by <NAME> guardian of the person and property of the plaintiffs.

15. Further, it is to be noted that at the date of the said agreement <NAME> had not been appointed guardian of the person and property of her minor children by the <ORG>,

16. On April 2,1912, the arbitrators, with the concurrence of the umpire, made their award in writing. They decided :-

(1) That the properties acquired by the deceased in the name of his wife, <NAME>, defendant No. 7, belonged to her as her separate properties and that she was entitled to those properties; (2) that the properties acquired by the deceased in the name of <NAME>, defendant) No. 4, wore his separate properties and that he was entitled to them; (3) that the factory known as the Victor Ice and Flour Mills, situate at Bagh Sherjang, City Luoknow, was given to <NAME> by the deceased during his lifetime and the same belonged to him, and (4) that the remaining properties should be distributed among the several heirs according to their legal shares under the Mahomedan law.

17. The award was carried out and acted upon until the filing of this suit.

18. On July 18,1912, <NAME> filed an application in <ORG> of Lucknow under Section 10 of the Guardians and Wards Act (VIII of 1890), praying for a certificate of guardianship of the person and property of her minor children, including the plaintiffs.

19. On September 18, 1912, the certificate was issued.

20. The plaintiff, <NAME>, attained his majority on October 21,1923.

21. The plaintiff, <NAME>, attained her majority on October 8, 1925.

22. The suit was instituted on October 20, 1926, just within three years from the date on which plaintiff' No. 1 attained his majority.

23. In the suit many issues were raised, but it is not necessary to refer to them all. Both the Courts in India held that the properties acquired by <NAME> in the names of <NAME> and <NAME> belonged to the two last-mentioned persons respectively, and on these matters they agreed with the decision of the arbitrators. No question arises in this appeal with respect to these properties.

24. It is material, however, to note that at the time of the arbitration the interest of <NAME> and that of her minor children were not identical with respect to the properties standing in her name, for if the arbitrators had come to the conclusion that <NAME> was holding these properties benami for her husband, as alleged, the minor children would have been entitled to their respective shares therein.

25. Both Courts in India decided the issue as to the factory known as <ORG> in the plaintiffs' favour. Disagreeing with the award in this respect, they held that the alleged oral gift of the factory by <NAME> to <NAME> had not been established. The concurrent findings in respect of this issue have not been disputed in this appeal. It must, therefore, be taken for the purposes of this appeal that the said factory was part of the estate of <NAME> at the date of his death, and that, subject to the question hereinafter to be considered, the plaintiffs, as two of his heirs, are entitled to their respective shares in the said factory.

26. There is no dispute as to the shares to which the plaintiffs are entitled in the properties of their father, viz., 14/104ths in respect of plaintiff No. 1, and 7/104ths in respect of his sister, plaintiff No. 2.

27. The main issue raised in <ORG> was whether <NAME>, acting on behalf of her minor children, the plaintiffs, was competent to refer to arbitration the matter of the division of the assets of <NAME> and questions connected therewith, and consequently whether the plaintiffs were bound by the award.

28. The Subordinate Judge decided this issue in favour of the plaintiffs, on the ground that <NAME>, the mother of the plaintiffs, had no authority to refer, so as to bind the plaintiffs.

29. He was of opinion that otherwise the award did not appear to be perverse, unfair or influenced by any corruption or misconduct of the arbitrators.

30. The learned Judges of <ORG> agreed with the conclusion of the Subordinate Judge on this issue and held that the agreement to refer to arbitration executed by <NAME> on behalf of her minor children could not be considered binding on them and that the award, if looked at from that point of view, must be held to be an inoperative document.

31. The learned Judges of <ORG>, however, were of opinion that the scheme of distribution promulgated in the award and which the learned Subordinate Judge had found to be in no way perverse or unfair or influenced by any corruption or misconduct of the arbitrators, and which had been followed without any objection whatever for a long period extending over fourteen years, could well be recognised as a family settlement and they stated that they were extremely reluctant to disturb the arrangement arrived at so far back as April, 1912.

32. Their Lordships appreciate the reluctance felt by the learned Judges, in view of the time which had elapsed since the arbitration and award. But the plaintiffs, on the death of their father, became entitled to their respective shares in his estate, and in view of the findings of both Courts in India it must now be taken that the above mentioned <ORG> was part of the immoveable property of <NAME>, in which the plaintiffs were entitled to share, and yet by the award it was allotted to <NAME> as being his own property. The award in this respect, when carried out, amounted to an alienation of the plaintiffs' shares in that property, to which, being infants, they could not consent, and unless <NAME>, their mother, had authority to act on their behalf and was competent to enter into the alleged arrangement by which the said alienation was effected, the infant plaintiffs' share in the said property could not be affected.

33. The learned Judges held that <NAME>, although she was at the time of the agreement the de facto guardian of the plaintiffs, who were then minors, had no power to deal with their property, and consequently that she had no authority to enter on their behalf into the agreement to refer the disputes to arbitration, which, if acted upon, would necessarily affect the immoveable property of the infant plaintiffs.

34. If <NAME> was not competent to deal with the immoveable property of the plaintiffs, by referring the disputes relating to the distribution of their father's estate to arbitration, and if the award made on such arbitration was not binding on the plaintiffs, it is difficult to see how <NAME> could be competent to effectuate that distribution and to make the provisions of the award binding upon the infant plaintiffs merely by calling that which was contained in the agreement and the award a family arrangement.

35. Their Lordships are of opinion that if <NAME> was not competent to enter into the agreement of reference so as to bind the plaintiffs who were minors at the time with respect to their share in the immoveable property of their father, it must follow that she was equally incompetent to agree to the disposal of the infant plaintiff's' share in any part of the immoveable property of their father by adopting the award and by calling the transaction a family arrangement.

36. It is, therefore, necessary to consider the question whether <ORG> had authority to enter into the agreement of reference on behalf of the plaintiffs who were minors at the time.

37. It has already been stated that <NAME> was not appointed guardian of the person and property of the minor children by <NAME>, and that at the date of the agreement of reference she had not been appointed guardian by the <ORG>.

38. At the time, therefore, of the agreement to refer she was not the legal guardian of her infant children, but merely the custodian of them. The provisions and principles of the Mahomedan law which govern this matter were stated in the judgment of Mr. <NAME> when delivering the decision of this Board in <CITATION> (1918) L.R. 45 I.A. 73 : s.c. 20 Bom. L.R. 1022 where the following passage is to be found (p. 83) :-

It is perfectly clear that under the Mahomedan law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian ; the father alone, or, if ha be dead, his executor (under the Sunni law), is the legal guardian. The mother has no larger powers to deal with her minor child's property than any outsider or non-relative who happens to have charge for the time being of the infant. The term 'de facto guardian ' that has been applied to these persons is misleading; it connotes the idea that people in charge of a child are by virtue of that fact invested with certain powers over the infant's property. This idea is quite erroneous; and the judgment of the Board in <CITATION> (1912) L.r. 39 I.A. 49 : s.c. 14 Bom. L.R. 192 clearly indicated it.

39. At pages 84 and 85 there are other material passages, which are as follows:-

As already observed, in the absence of the father, under the Sunni law, the guardianship vests in his executor. If the father dies without appointing an executor (wasi) and his father is alive, the guardianship of his minor children devolves on their grandfather. Should he also be dead, and have left an executor, it vests in him, In default of these de jure guardians, the duty of appointing a guardian for the protection and preservation of the infants' property devolves on the judge as the representative of the Sovereign : Baillie's Digest (ed. 1875), p. 689; Hamilton's Hedaya, vol. 4, bk. 52, Clause 7, p. 555. No one else has any right or power to intermeddle with the property of a minor, except for certain specified purposes, the nature of which is clearly defined. But the powers of even the de jure guardians are confined within legal limits. For example, whilst an executor guardian (wasi) may 'sell or purchase movables on account of the orphan under his charge either for an equivalent or at such a rate as to occasion an inconsiderable lose,' dealings with his immovable property are subjected to strict conditions : Baillie's Digest, p. 687....

When the mother is the father's executrix, or is appointed by the judge as guardian of the minors, she has all the powers of a de jure guardian. Without such derivative authority, if she assumes charge of their property of whatever description and purports to deal with it, she does so at her own risk, and her acts are like those of any other person who arrogates an authority which he does not legally possess. She may incur responsibilities, but can impose no obligations on the infant.

40. Mr. <NAME> then referred to certain exceptions provided for the protection of a minor child who has no de jure guardian which were classified under three heads : it is clear that the present case does not fall Within any of the stated exceptions.

41. The decision in the above-mentioned case was acted upon by <NAME> and <ORG> in Mohaiuddin Ahmed v. K. Ahmed (1920) I.L.R. 47 Cal. 713, the head note of which is as follows:-

The mother, as the de facto guardian of minors, is not competent, under the Mahomedan Law, to enter on their behalf into an agreement to refer to arbitration any dispute, even where there is no dejure guardian of the minors, such agreement being one which will necessarily, if acted upon, involve dealings with the immovable properties of the minors.

<NAME> v. <NAME> referred to.

42. Adopting the principles of Mahomedan law as stated by this Board in <CITATION> , their Lordships have no doubt that the Courts in India were right in holding that <ORG> had no authority to enter into the agreement of reference on behalf of the plaintiffs, who were minors at the time, so as to make the award binding upon them as to their share in the immoveable property of their father.

43. They are also of opinion that <NAME> had no power or authority to enter into an arrangement whereby the plaintiffs' share in the immoveable property of their father would be affected, in view of the fact that at the time of the said agreement she was not their legal guardian, and she cannot be clothed with the necessary authority by calling the transaction a family arrangement.

44. Their Lordships' attention was drawn by learned Counsel for the respondents to several reported cases: in their opinion, it is not necessary to deal with them in detail. It is sufficient to say that none of them covered the point which is now under consideration.

45. Reliance was placed by the learned Counsel for the respondents upon the fact that on September 18, 1912, <NAME> was appointed by the <ORG> guardian of the person and property of the minors, including the plaintiffs, and that therefore it should be taken that the <ORG>, by appointing <NAME> guardian, must have approved the arrangement evidenced by the agreement of reference and the award. There is, however, no evidence that the District Judge was made aware of the said arrangement. Indeed, it was admitted that if an application had been made to him before the agreement to refer was executed, and if he had been informed that the interest of the mother with regard to some of the properties was not identical with that of the minors, as was the fact, the Judge would in the ordinary course have appointed some person, other than the mother, as guardian of the minors. It is obvious that the District Judge did not consider the question which is now before their Lordships, and the mere fact that the <ORG> subsequently found the mother a fit person to act for the minors would not validate the arrangement, which in its inception was invalid.

46. A further point was raised by the learned Counsel for the respondents, viz., that the plaintiff <NAME> could not maintain the suit because he had ratified the alleged family arrangement as to part of the estate allotted to him by the award.

47. It appears that certain mortgage deeds had been executed in favour of <NAME> and these were included in the shares awarded to the plaintiff and his brothers, A suit on the mortgages was instituted on October 13, 1922, by <NAME> after attaining majority, and his three brothers, of whom <NAME> was one, as minors, under the guardianship of their mother.

48. A preliminary decree was obtained on October 11, 1923, and an application was made for a decree absolute on September 22, 1924, and the decree was made absolute on November 1, 1924- <NAME> was of age when the application for decree absolute was mada, and signed it as a major.

49. Their Lordships do not consider that this is sufficient to prevent <NAME> from maintaining the present suit. Proceedings in the mortgage suit had been begun when he was a minor, and when the tune came for application for a decree absolute the mother had no longer any authority to act for him, as he had attained majority, and <NAME> being a party to the suit his signature to the application was necessary to bring the proceedings to a conclusion in the interest of all concerned.

50. The learned Counsel for the plaintiffs contended that they were entitled to an account of and a share in all the profits made by <NAME> in respect of <ORG>.

51. Their Lordships are unable to accept this contention.

52. It appears that <NAME> managed the business of the factory in his father's lifetime and continued so to do after his death. The old factory has gone, most of the machinery being worn out, and modern factories were erected by him in its place.

53. These and other facts stated by the learned Subordinate Judge, which need not be mentioned in detail, are sufficient to show that this is not a case for mesne profits. The rights of the plaintiffs in this respect are fully met by the allowance of interest at the rate of twelve per cent. per annum made by the Subordinate Judge. It is worthy of note that the plaintiff-appellants in their case did not ask for mesne profits, but submitted that the decree of the learned Subordinate Judge should be restored, and that Rs. 25,000, the amount fixed by <ORG>, should be substituted for Rs. 25,528, which was the sum decreed by the learned Subordinate Judge as the capitalised value of the factory.

54. For the above-mentioned reasons their Lordships are of opinion that the appeal must be allowed, the decrees of <ORG> dated October 18, 1928, must be set aside, and the decree of the Subordinate Judge dated January 17, 1928, as amended by the order of March 8, 1928, be restored, but that the sum of Rs. 25,000 be substituted for the sum of Rs. 25,526 mentioned in the said decree of the Subordinate Judge.

55. The respondents, the heirs of the deceased respondent, <NAME>, must pay the costs of the plaintiffs of this appeal, and of the appeals to <ORG>. Their Lordships will humbly advise His Majesty accordingly.