PETITIONER: STATE OF A.P. Vs. RESPONDENT: S.B.P.V.CHALAPATHI RAO DATE OF JUDGMENT24/10/1994 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) HANSARIA B.L. (J) MAJMUDAR S.B. (J) CITATION: 1995 AIR 557 1995 SCC (1) 725 JT 1994 (7) 178 1994 SCALE (4)637 ACT: HEADNOTE: JUDGMENT:

The Judgment of the Court was delivered by KULDIP SINGH, <NAME> and his son <NAME> respondents in the herein, sold 220.25 acres of land by way of fourteen sale deeds executed on five different days between 16-12-1971 and 27-12-1971. The question for consideration is whether the transfers are to be disregarded for the purpose of computation of the ceiling area of the respondents under the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (the Act). <ORG> (the <ORG>) by its order dated 14-4-1977 answered the question in the affirmative and held that the transfers were made in anticipation of and with a view to avoiding or defeating the objects of the Act. The Land Reforms Appellate <ORG> (the Appellate <ORG>), however, by its order dated 17-12-1977 reversed the findings of the <ORG> and held as under:

"Therefore, in these cases we hold that the declarant had given a reasonable explanation for the sale of the lands and there was no intention to avoid the provisions of the Land Ceiling Act . Accordingly, we hold on point-1 that all the sales effected by the appellant, his wife and his son are true, genuine and supported by consideration and they were effected for the expansion of their industry and actually the amounts were invested for such expansion of the sugar factory and it cannot be said that they were intended to defeat or avoid the provisions of the Land Ceiling Act . It follows that all the extents covered by all the sale deeds have to be excluded from the holding of the appellant's family unit, for the purpose of computation of the ceiling area of the appellants."

Revision petitions filed by the State of Andhra Pradesh under Section 21 of the Act were admitted by <ORG> on 6-7-1978 on the limited question regarding "the treatment of the lands as single crop wet lands" and in respect of all other questions the revision petitions were dismissed. <ORG>, therefore, upheld the above quoted findings of <ORG>. These appeals by the State of Andhra Pradesh are against the order of <ORG> as upheld by <ORG>.

2. Sections 7(1) and 21 of the Act, which are relevant, are reproduced hereunder:

"7. Special provision in respect of certain transfers, etc. already made. Where on or after 24th January, 1971 but before the notified date, any person has transferred whether by way of sale, gift, usufructuary mortgage, exchange, settlement, surrender or in any other manner whatsoever, any land held by him or created a trust of any land held by him, then the burden of proving that such transfer or creation of trust has not been effected in anticipation of, and with a view to avoiding or defeating the objects of any law relating to a reduction in the ceiling on agricultural holdings, shall be on such person, and where he has not so proved, such transfer or creation of trust, shall be disregarded for the purpose of the computation of the ceiling area of such person." (May 2, 1972 is the notified date under the Act) "21. Revision.- An application for revision from any party aggrieved, including the <ORG>, shall lie to <ORG>, within the prescribed period, from any order passed on appeal by <ORG> on any of the following grounds, namely:

(a) that it exercised a jurisdiction not vested in it by law, or

(b) that it failed to exercise a jurisdiction so vested, or

(c) that it acted in the exercise of its jurisdiction illegally or with material irregularity."

3. The Ordinance, which preceded the Act, came into force on 2-5-1972. Section 7(1) of the Act provides that any transfer of land made during the period from 24-1-1971 to 2- 5-1972 which was made in anticipation of, and with a view to avoiding or defeating the objects of any law relating to reduction in the ceiling of agricultural holdings, shall be disregarded for the purpose of the computation of the ceiling area under the Act. It further provides that onus to prove that the transfer was not with a view to avoiding or defeating any such law would be on the landowner.

4. The case of the respondents before the <ORG> was that as early as 1946 they obtained two licences for setting up of textile industry and sugar industry. According to them during the period from 1939 to 1960 large areas of lands were sold by them for the purposes of setting up of the two industries. The precise reason, according to the respondents, for the sale of the lands in dispute was to expand the sugar industry for which a valid licence was obtained.

5. The <ORG> on appreciation of the evidence before it and taking into consideration the relevant material on the record came to the following conclusions:

(1) That the recitals in the sale deeds did not mention that the purpose for the sale of lands was to invest the proceeds in the expansion of sugar industry rather it was mentioned that the lands were not convenient for personal cultivation and reasonable price was offered by the purchasers;

(2) That in respect of all the sales only initial payments were accepted and pronotes were got executed in favour of the respondents for the major portion of the sale amounts; (3) That the purchasers were employees or relatives of the respondents;

(4) That the lands were sold at the rate of Rs 300 to Rs 1000 which according to the Tribunal was not the market price of the lanka lands;

(5) That more than 220 acres of lands were transferred on five different dates during the period from 16-12-1971 to 27-12-1971; and (6) That the disposal of large chunks of lands in December 1971 goes to show that the same might not have been sold but for the impending legislation on the land ceiling.

Supported by the above conclusions the <ORG> reached the finding that the transfers were made in anticipation of and with a view to avoid and defeat the provisions of the Act.

6.<ORG>, however, came to the conclusion that the conduct of the respondents regarding the sale of lands owned by them was consistent. They have been selling the lands to raise funds for setting up of industries and the transfers in dispute were effected to raise money to meet the expenses for the expansion of the sugar industry. <ORG> did not agree with the <ORG> that the price for which the lands were sold was not the market price. <ORG> felt fully satisfied that the disputed sales were with a view to meet the expenditure to be incurred by the respondents on the expansion of the sugar industry. <ORG>, therefore, held that the transfers in dispute were not made in anticipation of and with a view to avoid or defeat any provisions of the Act. As mentioned above <ORG> upheld the finding of the Appellate <ORG> by dismissing the revision petitions in limine.

7.Mr <NAME>, learned counsel appearing for the respondents, has vehemently contended that there is no justification whatsoever in reversing the finding of <ORG> to the effect that the sales in dispute were made to meet the expenses to be incurred for the expansion of sugar industry. According to him the finding of <ORG> being a finding of fact, this Court in exercise of its jurisdiction under Article 136 of the Constitution of India read with Section 21 of the Act should not ordinarily interfere with the same. Mr <NAME>, learned counsel appearing for the State of Andhra Pradesh, on the other hand contended that the proposal for the expansion of the sugar industry was mooted sometime in June 1970 but it was two years thereafter in April 1972 that the application for licence to expand the industry was made and the licence, in fact, was granted on 26-11-1973. According to the learned counsel, in December 1971, when the lands were sold, there was no question of spending any money on expansion of the industry because even the application for licence was made on 26-4-1972 and the licence was granted as late as 26-11-1973. It was forcefully contended by Mr <NAME> that the only urgency to sell the land in December 1971 was to defeat the provisions of the Act which was on its way and came to be enforced on 2-5-1972. Needless to say that from 2-5-1972 there was total prohibition on the sale of the lands which were subject- matter of the Act. There is plausibility in the argument of Mr <NAME> but we proceed on the assumption that the sales in dispute were made with a view to meet the expenses to be incurred on the proposed expansion of the sugar industry.

8.Mr <NAME> contended that the sales in dispute, being valid and genuine, were made in good faith. According to him the sales made in good faith, cannot be considered to have been made with a view to avoid or defeat the provisions of the Act. To support his contention he relies on the judgments of this Court in <NAME> v. State of U.R 1 and <CITATION> these cases this Court was called upon to interpret sub-section (6) of Section 5 of The Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960 (the U.R Act) which is reproduced hereunder:

"(6) In determining the ceiling area applicable to a tenure-holder, any transfer of land made after twenty-fourth of January, 197 1, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account: Provided that nothing in this sub-section shall apply to(a)

(b) a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure-holder or other members of his family.

Explanation I.-

Explanation II.- The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit."

The provisions of the Act and the U.P. Act are not pari materia. Under the U.R Act where it is proved to the satisfaction of the prescribed authority that the transfer of land in a given case is in good faith, and satisfies other conditions laid down in clause (b) of the proviso to sub-section (6) of Section 5 , the transfer is valid and cannot be ignored while determining the ceiling area of the landowner. On the other hand, under the Act the bona fide or genuine nature of the transfer or the same being made in good faith has no relevance at all. What is required to be proved under the Act by the landowner is that the transfer was not made in anticipation of and to avoid or defeat the provisions of the Act. We are of the view that Section 7(1) of the Act not only requires the transfer to be valid and genuine but also makes it obligatory for the transferor to prove that there was some compelling reason to sell the land at that point of time. Some sort of necessity or compulsion to sell the land has to be proved.

9. The view we have taken on the interpretation of Section 7(1) of the Act, is supported by a three Judge Bench order of this Court in <NAME> v. State of A.p3 In the said case while interpreting Section 7(1) of the Act this Court held as under:

"As far as the transactions between 24-1-1971 and 2-5-1972 are concerned, <ORG> has accepted the conclusions reached by the <ORG>. <ORG> has pointed out that a large extent of over 220 acres of land was alienated by the appellant and his wife within a short period of eight months between 4-6-

1971 and 1-2-1972. It was not the 1 (1981) 1 SCC 597 :(1981) 2 SCR 287 2 1991 Supp (2) SCC 639 : AIR 1991 SC 1928 3 1995 Supp (1) SCC 245, para 2: AIR 1994 SC 471

case of the appellant that there was any pressure on the estate for the discharge of debts or that the alienations were in fact made for discharge of, or meeting any binding debts, or for meeting the marriage or educational expenses of any member of the family. It was on the basis of this finding that the <ORG> came to the conclusion that the said transactions were made in anticipation of the said Act and <ORG> was, in our view, justified in declining to interfere with the same."

10.In the present case the respondents might be wanting to raise money for the expansion of the sugar industry but there is nothing on the record to show as to why they chose December 1971 when the Act was in the legislative process to sell more than 220 acres of land. They applied for the licence sometime in 1972 and the licence was in fact granted to them in November 1973. There was no question of making any expansion till the time the licence was granted. Needless to say that keeping in view the continuous rise in land prices the respondents prudent as they are should have ordinarily waited till the time it became absolutely necessary for them to sell the land. In any case they could have waited till November 1973 when they obtained the licence. The only logical conclusion which can be drawn is that they sold huge chunks of lands in December 1971 in anticipation of, and with a view to avoid and defeat the provisions of the Act which came into force on 2-5-1972. We are, therefore, of the view that <ORG> acted illegally in exercise of its jurisdiction in reversing the order of the <ORG>.

11.Mr <NAME> sought further support from the judgment of this Court in <CITATION> wherein this Court interpreted Section 22 of The Tamil Nadu Reforms (Fixation of Ceiling of Land) Act, 1961 (the Tamil Nadu Act ). The provisions of the Tamil Nadu Act and the Act are entirely different. Therefore, the judgment of this Court in <NAME> case4 relating to the Tamil Nadu Act has no relevance whatsoever.

12.The appeals are allowed. The impugned orders of <ORG> and that of <ORG> are set aside. The order of the <ORG> is restored. The respondents shall pay the cost of the proceedings which we quantify at Rs 11,000.

4 (1979) 3 SCC 466


<NAME>, J.

1. This is an appeal with special leave against the judgment of <ORG>, <ORG>, Calcutta. The appellant is private company registered under the India Companies Act incorporated with the objects, amongst other, (1) to by and develop landed properties and (2) to promote and develop markets. In 1946 the appellant purchased ten bighas of land in the town of Calcutta and set up a market therein. The appellant constructed shops and stalls on platforms on that land. For the assessment year 1953-54 the appellant received Rs. 53,145 as income from the tenants of shops and Rs. 29,721 from the tenants or occupants of stalls. The Income-tax Officer assessed the income derived from shops and stalls under section 9 of the Income-tax Act. The order of assessment was confirmed in appeal by the Appellate Assistant Commissioner and by the <ORG>. The appellant has obtained special leave to appeal against the order of the <ORG>.

2. The appellant contends that because it is a company formed with the object of promoting and developing markets, its income derived from the shops and stalls is liable to be taxed under section 1o of the Income-tax Act as "profits or gains of business" and that the income is not liable to be taxed as "income from property" under section 9 of the Act. The appellant is undoubtedly, under the provisions of the Calcutta Municipal Act, 1951 required to obtain a licence from <ORG> Calcutta and to maintain sanitary and other services in conformity with the provisions of that Act and for that Act and for that purpose has to maintain a staff and to incur expenditure. But on that account, the income derived from letting out property belonging to the appellant does not become "profits or gains" from business within the meaning of sections 6 and 1o of the Income-tax Act. By section 6 of the Income-tax Act the following six different heads of income are made charageable : (1) salaries, (2) interest on securities, (3) income from property, (4) profits and gains of business, profession or vocation, (5) income from other sources and (6) capital gains. This classification under distinct heads of income, profits and gains is made having regard to the sources from which income is derived. Income-tax is undoubtedly levied on the total taxable income of the taxpayer and the tax levied is a single tax on the aggregate taxable receipts from all the sources; it is not a collection of taxes separately levied on distinct heads of income. But the distinct heads specified in section 6 indicating the sources are mutually exclusive and income derived from different sources falling under specific heads has to be computed for the purpose to taxation in the manner provided by the appropriate section. If the income from a source falls within a specific head set out in section 6 the fact that it may indirectly be covered by another head will not make the income taxable under the latter head.

3. The income derived by the company from shops and stalls is income received from property and falls under the specific head described in section 9 . The character of that income is not altered because it is received by a company formed within object of developing and setting up markets. <CITATION> - tax this court explained after an exhaustive review of the authorities that under the scheme of the Income-tax Act , 1922, the heads of income, profits and gains enumerated in the different clauses of section 6 are mutually exclusive, each specific head covering items of income arising from a particular source.

4. In <NAME> v. <ORG> a company formed to acquire, manage and deal with a block of buildings, having let out the rooms as unfurnished offices to tenants, was held chargeable to tax under Schedule A to the Income Tax Act . 1918, and not Schedule D. The company provided a staff to operate the lifts and to act as porters and watch and protect the building; and also provided certain services such as heating and cleaning to the tenants at an additional charge. The taxing authorities sought to charge the income from letting out of the rooms as receipts of trade chargeable under Schedule D, but that claim was negatived by <ORG> holding that the rents were profits arising from the ownership of land assessable under Schedule A and that the same could not be included in the assessment under Schedule D as trade receipts.

5. <CITATION> income derived from rents by a company whose sole object was to acquire lands, build houses and let them to tenants and whose sole business was management and collection of rents from the said properties, was held assessable under section 9 and not under section 10 of the Income-tax Act. It was observed in that cases that, merely because the owner property, was a company incorporated with object of owning property, the incidence of income derived from the property owned could not be regarded as altered; the income came more directly and specifically under the head "property" than income from business.

6. The income received by the appellant from shops is indisputable income from property; so is the income from stalls from occupants. The character of the income is not altered merely because some stalls remain occupied by the same occupants and the remaining source of income from the stalls is occupation of the stalls, and it is a matter of little moment that the occupation which is the source of the income is temporary. The income-tax authorities were, in our judgment, right in holding that the income received by the appellant was assessable under section 9 of the Income-tax Act.

7. The appeal, therefore, fails and is dismissed with costs.

8. Appeal dismissed.


ORDER--Finding as to error in assessment order HELD:

Where the <ORG> had completed assessment after discussion with the representative of the assessee in the absence of any error pointed out by the Commissioner, the assessment could not be said to be erroneous and prejudicial to the interest of the revenue.

Income Tax Act 1961 s.263 JUDGMENT Om Prakash, J.

1. These are two applications made under Section 256(2) of the Income-tax Act, 1961, relating to the assessment years 1979-80 and J980-81 by the Commissioner of Income-tax, Agra, by which <ORG> is directed to state the case on the following questions for the opinion of this court :

" (1) Whether, on the facts and in view of the legal position as mentioned in the statement of facts, the <ORG> could be said to be legally correct in setting aside the order passed under Section 263 by the Commissioner of Income-tax ?

(2) Whether there is any legal basis for the hon'ble Tribunal to come to the conclusion that notice under Section 263 was issued by the Commissioner of Income-tax merely on suspicion and he had no cogent material before him for initiating the proceedings under Section 263 of the Income-tax Act, 1961 ?

(3) Whether, on the facts and circumstances of the case, the decision of the, Allahabad High Court reported in Srivastava (J. P.) & <CITATION>  111 ITR 326 has been correctly applied by the Tribunal ?

(4) Whether the <ORG> is legally correct in not accepting the <ORG>'s contention that the order under Section 263 is valid in view of <ORG> decision in the case of Rampyari Devi Saraogi  67 ITR 84 and <CITATION>  88 ITR 323 ?

(5) Whether, on the facts and circumstances of the case, failure on the part of the Income-tax Officer to make proper and adequate enquiries is by itself not sufficient to meet the requirement of Section 263 which confers jurisdiction in respect of an order which is erroneous and prejudicial to the interests of the <ORG> ?

(6) Whether the <ORG>, on the facts and in the circumstances of the case, is legally correct in not giving a finding as to how the decisions given in the following cases by the High Courts and relied upon by the Commissioner in his order under Section 263 are not applicable to the facts of the assessee's case ? The cases are :

1. <ORG> v. Addl. CIT [1975] 99 ITR 375 (Delhi) ;

2. <CITATION>  136 ITR 243 (Raj); and

3. <CITATION>  101 ITR 1 (Kar) ? "

2. The assessee, <ORG>, Agra, a specific trust, was created on January 24, 1973, under a trust deed by Smt. <NAME> with a corpus of Rs. 500 for the benefit of the beneficiaries. The assessee filed returns for the first time for the assessment years 1979-80 and 1980-81 on February 20, 1982, showing incomes of Rs. 39,540 and of Rs. 38,420, respectively, in the status of a private specific trust. The Income-tax Officer completed the assessments for both the years on a single day, viz., November 25, 1982. Both the orders are couched in identical language. Therefore, it will suffice if only one order is reproduced for appreciation of the case. The assessment order for the assessment year 1979-80 runs as follows:

"Return filed declaring an income of Rs. 39,540. In response to a notice under Section 143(2) , <NAME>, CA, attended. Case discussed. This is a case of Private Family Specific Trust, in which shares of beneficiaries are specified. Therefore, income in the hands of the trust is exempt and taxable in the hands of beneficiaries. The trust has been created, vide trust deed dated January 24, 1973, a copy of which has been filed and placed on record, for the benefit of beneficiaries, Km. <NAME>, Km. <NAME>, Km. <NAME> and Master <NAME>. After discussion and scrutiny, income returned is accepted. Share of each beneficiary comes to Rs. 9,890. Assessed. Issue N. D. "

3. Thereafter, notices under Section 263 were issued to the assessee by the Commissioner of Income-tax for "both the years calling upon the assessee to show cause as to why assessment orders be not cancelled, as being erroneous and prejudicial to the interests of the <ORG>. Not being satisfied with the explanation of the assessee, the Commissioner set aside the assessment orders for both the years directing the Income-tax Officer to make the assessments de novo. The Commissioner was of the view that the orders for both the years were erroneous and prejudicial to the interests of the <ORG>, inasmuch as they were passed by the Income-tax Officer "......in haste/hurry without proper and adequate enquiry...... ". The Commissioner also observed that the orders do not show "How and in what manner and with what capital the trust conducted its business relating to handloom daris and it is not at all clear from the papers filed." He also added that the record shows that the books of account of the trust were never produced before the Income-tax Officer for scrutiny, that no tick marks were made on any papers filed by the trust along with the return and that the assessment was made in one hearing, without requiring the presence of the trustees. The Commissioner finally concluded :

" that an assessment made in haste/hurry without proper and adequate enquiry/investigation is erroneous and prejudicial to the interest of the <ORG>.... "

4. On appeal, <ORG> set aside the order of the Commissioner for both years by a combined order dated April 30, 1986. In paragraph 4 of the said order, the <ORG> observed that the assessee had filed the trading and profit and loss account, balance-sheet and copies of the accounts of the beneficiaries before the Income-tax Officer. Having so observed, the <ORG> found that there was little reason to doubt the contention of the assessee that the books of account had been produced before the Income-tax Officer. The finding that the books of account had been produced before the Income-tax Officer and that he passed the orders after having seen them is a finding of fact and no question of law arises therefrom.

5. In his orders, the Income-tax Officer had clearly stated that he had discussed the case with the representative of the assessee and it was only after the discussion that the Income-tax Officer held that the assessee was a private specific trust and the income thereof was exempt in the hands of the trust but that it was assessable in the hands of the beneficiaries. Having considered all these facts, the <ORG> observed in paragraph 4 : "The reasons given by the Commissioner of Income-tax for coming to the conclusion that the assessments had been made in a hurried way without any checking or scrutiny are superficial. " Such finding of the <ORG> is not without material and hence no question of law arises.

6. There is no finding by the Commissioner that the Income-tax Officer reached an erroneous conclusion and that, on the facts and circumstances of the case, the conclusion would have been different. The orders of the Income-tax Officer may be brief and cryptic, but that by itself is not sufficient reason to brand the assessment orders as erroneous and prejudicial to the interest of the <ORG>. Writing an order in detail may be a legal requirement, but the order not fulfilling this requirement, cannot be said to be erroneous and prejudicial to the interest of the <ORG>. It was for the Commissioner to point out as to what error was committed by the Income-tax Officer in having reached the conclusion that the income of the trust was exempt in its hands and was assessable only in the hands of the beneficiaries. The Commissioner having failed to point out any error, no error can be inferred from the orders of the Income-tax Officer for the simple reason that they are bereft of details. If the order is not erroneous, then it cannot be prejudicial to the interest of the <ORG>. There is nothing to show in the order of the Commissioner that the Income-tax Officer would have reached a different conclusion had he passed a detailed order. So, the conclusion of the Commissioner that the orders of the Income-tax Officer are erroneous and prejudicial to the interest of the <ORG> are based merely on suspicion and surmises in the absence of any enquiry having been made by him.

7. In the income-tax assessments, all questions boil down to this, whether income has been properly determined and whether the correct rate of tax has been applied. The Commissioner does not say that the income was higher or that it was assessed on a wrong entity or at a low rate or that any exemption was wrongly allowed. In the absence of such a finding, the assessment orders cannot be said to be erroneous and prejudicial to the interest of the <ORG>.

8. For the above reasons, we are not inclined to direct the <ORG> to state the case on any question proposed by the <ORG>. The applications are, therefore, dismissed, but there will be no order as to costs.


PETITIONER: OM PRAKASH GUPTA ETC. Vs. RESPONDENT: DIG VIJENDRAPAL GUPTA ETC. DATE OF JUDGMENT05/03/1982 BENCH: <NAME>, R.B. (J) BENCH: <NAME>, R.B. (J) KOSHAL, A.D. ERADI, V. <NAME> (J) CITATION: 1982 AIR 1230 1982 SCR (3) 491 1982 SCC (2) 61 1982 SCALE (1)153 CITATOR INFO : C 1984 SC 87 (18,20) 1985 SC 817 (8) D 1985 SC 817 (14) F 1987 SC2284 (4,11,13) F 1988 SC2031 (9) 1988 SC2164 (8) E&D 1990 SC 897 (8,9,10,11,14) D 1991 SC 266 (7) D 1992 SC1106 (6,10) ACT: U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972. S.2 (2) and Expln. I and s. 39 . Applicability of the Act-Act not to apply to building for a period of ten years from 'date of completion of construction'. Date of completion of construction-What is-'Date of first assessment' if assessed-'Date of occupation' when no record of completion of construction or of assessment. Interpretation of Statutes-Intention of legislature-To be ascertained primarily from words used by legislative- Question of interpretation arises when language ambiguous. HEADNOTE: The U.P. Urban Buildings (Regulation of Letting, Rent and (Eviction) Act , 1972 provided by sub-section (2) of section 2 that except as provided in the Act, the Act was not to apply to a building during a period of 10 years from the date on which its construction was completed. Explanation I to the sub-section provided that the building shall be deemed to have been completed on the date on which completion thereof is reported or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said date, and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time. The appellant-tenant was in occupation of a shop from the 16th June, 1967 and prior to his occupation the shop was in occupation of another tenant for about a month and a half. The first assessment of the shop took place on Ist of April, 1968. The respondent-landlord filed a suit for the eviction of the tenant on the ground that the Act did not apply to the shop and the tenant was liable to eviction. The Trial Judge finding that the construction of the shop was completed in the year 1967 and that 10 years having not elapsed since then, held that the provisions of the Act did not apply and decreed the suit. The appellant's 492 petition under section 25 of the Provincial Small Causes Courts Act was dismissed. In his revision petition to <ORG> under section 115 of the Civil Procedure Code the appellant contended that the date of occupation should be taken to be the date of completion of the construction of the shop and not the date of first assessment. <ORG> overruled the contention and held that the construction of the shop would be deemed to have been completed on 1st of April, 1968 the date of the first assessment and ten years not having elapsed, the Act would not be applicable to the building and dismissed the revision petition. In the appeal to this Court it was contended on behalf of the appellant: (1) that by virtue of sub-section (2) of section 2 , the Act would be applicable to the shop in question and that the exemption created by the sub-section did not embrace buildings constructed prior to the commencement of the Act and (2) that the building should be deemed to have been constructed on the date of occupation on 16th June, 1967 and not on the date of the first assessment. and that the appellant was entitled to the benefit of section 39 of the Act. Dismissing the appeal, ^ HELD: 1(i) The suit was rightly decreed by the Courts below. The Act had no application and the appellant could not be given the benefit of section 39 . [498 G-H] (ii) Primarily, the language employed is the determining factor of the intention of the legislature. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. The question of interpretation arises only when the language is ambiguous and, therefore capable of two interpretations. [497 F] (iii) The language of sub-section (2) of section 2 of the Act is explict and unambiguous and is not capable of two interpretations. [497 G] In the absence of any ambiguity there is no question of taking any external aid for the interpretation of the sub- section. The sub-section contemplates that the Act shall not apply to a building during a period of 10 years from the date on which its construction is completed. It no where says that the building should have been constructed after the enforcement of the Act and to interpret it in such a way would be to add words to the sub-section, which is not permissible. [497 D-F] 2 (i) Explanation I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment thereof. If there is an assessment, as in the instant case it will be the date of the first assessment which will be deemed to be the date of completion of the construction. The building had not therefore become more than ten years's old on the date when the revision came to be decided by <ORG> and consequently there was no question of giving the benefit of section 39 of the Act to the appellant. [498 D-F] 493 (ii) In order to attract section 39 the suit must be pending on the date of the commencement of the Act which was 15th of July, 1972. [498 F] In the instant case the suit was filed on 23rd of March 1974 long after the commencement of the Act. [498 F] (iii) In view of sub-section (2) of section 2 , the Act is not applicable to a building which has not a standing of ten years. If the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable. [498 <CITATION> (1980)4 S.C.C. 258 and <CITATION> (1980) 3 S.C.C. 452, over-ruled. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1314 of 1978.

Appeal by special leave from the judgment and order dated the 23rd March, 1978 of <ORG> in Civil Revision No. 1906 for 1976.

WITH CIVIL APPEAL No. 2436 OF 1981 Appeal by special leave from the judgment and order dated the 20th August, 1981 of <ORG> in Civil Writ Petition No. 6909 of 1979.

AND CIVIL APPEAL No. 1710 OF 1981 From the judgment and Decree dated the 13th March, 1981 of <ORG> in Writ Petition No. 6167 of 1979.

AND SPECIAL LEAVE PETITION (CIVIL) NO. 3573 OF 1979 From the judgment and order dated the 3rd January, 1979 of <ORG> in Civil Revision No. 3714 of 1978.

<NAME>, Mrs. <NAME> and <NAME> for the Appellant in CA. No. 1314 of 1978.

<NAME>, <NAME> and <NAME> for the Respondent in CA. 1314 of 1978.

<NAME> for the Appellant in CA. 1710/80. <NAME> for Respondent in CA. 1710/80. <NAME> and Mrs. <NAME> for the appellant in CA. 2436 of 1980.

<NAME> and <NAME> for the Respondent in <NAME> 1980.

<NAME>, <NAME> and <NAME> for the Petitioner in SLP (Civil) No. 3573 of 1979 <NAME> for the Respondent.

The Judgment of the Court was delivered by <ORG> The first two appeals by special leave and the third by certificate and the special leave petition raise a common question of law and, therefore, we propose to dispose of them by a common judgment.

The pattern of facts in all these cases is similar. We, therefore set out the facts of Civil Appeal No. 1314 of 1978 to bring out the point for consideration in these matters.

The appellant <NAME> is a tenant of a shop on a monthly rent of Rs. 150/-.The respondent-landlord filed a suit for the eviction of the tenant on the ground that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act , 1972 (Act 13 of 1972 and hereinafter referred to as 'the Act') did not apply to the shop and the tenant was liable to eviction. The Judge, <ORG>, Mainpuri decreed the suit on the finding inter alia that the construction of the shop in suit was completed in the year 1967 and that ten years having not elapsed since then, the provisions of the Act did not apply to the case. The defendant went up in revision under section 25 of the Provincial <ORG>s Act against the judgment and decree of the trial Court but the same was substantially dismissed. The defendant thereupon filed a revision under section 115 of the Civil Procedure Code in <ORG> which came up for hearing before a learned Single Judge who remitted the following issue to the trial court:

"On what date was the construction of the building in dispute completed within the meaning of section 2 (2) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act , 1972, and deemed to have been completed as contemplated by Explanation I (a) thereto."

The Judge <ORG> by his order dated 26th of November 1977 returned the following finding:

"The construction of the disputed shop will be deemed to have been completed on the date of the first assessment i.e. 1.4.68 within the meaning of section 2 (2) of the U.P. Urban Buildings Act, 1972."

The finding returned by the trial court was sought to be challenged on behalf of the tenant on the ground that the date of occupation should be taken to be the date of completion of the construction of the shop and not the date of the first assessment. In <NAME> v. <NAME>) a learned Single Judge of the same <ORG> had the occasion to consider section 2 (2) of the Act. He held:

"It is apparent from this provision that for purposes of this Act, a building is to be deemed to be constructed, if it is subject to assessment, on the date with effect from which the first assessment is made. It is immaterial whether the building was constructed actually prior to that date or it had come into occupation prior to that date. The law recognised for the purposes of this Act, the date of assessment as the date of the completion of the building. There is thus no error in the judgment of the court below."

The learned Single Judge before whom the revision in the instant case came up for hearing doubted the correctness of the above decision. He, therefore, referred the case to <ORG>.

There is no dispute that the first assessment of the shop took place on 1st of April, 1968. It is also not in dispute that the shop in question was occupied by the defendant on 16th of June, 1967, and prior to his occupation the shop was in occupation of another tenant for about a month and a half. The appellant sought the benefit of section 39 of the Act on the ground that if the date of occupation was taken to be the date of the completion of the construction of the shop, then ten years having elapsed during the pendency of the revision before <ORG>, the Act would be applicable. <ORG>, however, over-ruled the contention of the appellant and held that the construction of the shop in question would be deemed to have been completed on 1st of April 1968 and, therefore, the Act would not be applicable to the building till the date of the decision of the revision on March 23, 1968. The defendant undaunted by the failure came to this Court to challenge the judgment of <ORG>.

Mr. <NAME>, senior counsel. appearing for the appellant strongly contended that on a correct interpretation of sub-section (2) of section 2 , the Act would be applicable to the shop in question. It would be appropriate at this stage to extract sub-section (2) of section 2 of the Act insofar as it is material for the purposes of the case:

"Except as provided in sub-section (5) of section 12 , sub-section (1-A) of section 21 , sub-section (2) of section 24 , sections 24A , 24B , 24C or sub-section (3) of section 29 , nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed: Explanation I. For the purposes of this sub- section:

(a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :.."

The precise contention on behalf of the appellant is that the exemption created by this sub-section does not embrace buildings constructed prior to the enforcement of the Act. In support of his contention, Mr. <NAME>, relied upon <CITATION> .(1) The same contention was raised by him in that case also and a Division Bench of this Court accepted the contention and held that Act 13 of 1972 was prospective and applied only to buildings brought into being de novo after the Act came into force. In that case there is no discussion except this bald observation. This Court in a subsequent case <CITATION> (2) held to the contrary. It is on this account that the present appeals were referred to a larger Bench. There is no ambiguity in the language of sub-section (2) of section 2 and in the absence of any ambiguity there is no question of taking any external aid for the interpretation of the sub-section. In plain words the sub-section contemplates that the Act shall not apply to a building during a period of ten years from the date on which its construction is completed. It nowhere says that the building should have been constructed after the enforcement of the Act and to interpret it in the way the learned counsel for the appellant seeks to interpret it, we would be adding words to the sub-section, which is not permissible. Primarily the language employed is the determining factor of the intention of the legislature. The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. The question of interpretation arises only when the language is ambiguous and, therefore, capable of two interpretations. In the present case the language of sub-section (2) of section 2 of the Act is explicit and unambiguous and it is not capable of two interpretations.

As a second limb to the first argument, it is contended that the building will be deemed to have been constructed on the date of occupation on 16th of June, 1967 and not on the date of the first assessment, and that if this be so, the appellant would be entitled to the benefit of section 39 of the Act on the date when the revision came to be decided by <ORG> on 23rd of March, 1978. In order to appreciate this argument it will be expedient to refer to Explanation I to sub-section (2) of section 2 which has already been extracted. Explanation I provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment the date on which the first assessment thereof comes into effect and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time. A perusal of Explanation I makes it abundantly clear that the date of occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment, thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction and in that view of the matter the building had not become more than ten years' old on the date when the revision came to be decided by <ORG>, and therefore there was no question of giving the benefit of section 39 of the Act to the appellant.

Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act. There is yet another reason why section 39 will have no application to the present case. In view of sub-section (2) of section 2 of the Act the Act is not applicable to a building which has not a standing of ten years and if the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable. Considered from any angle the Act has no application to the present case and the appellant could not be given the benefit of section 39 . The suit has, therefore, been rightly decreed by the courts below.

We find no force in either of the contentions raised by Mr. <NAME>. The counsel for the appellants in the other appeals and the petitioner in the special leave petition, adopted the arguments of Mr. <NAME>.

For the foregoing discussion the appeals and the special leave petition are dismissed. There shall, however, be no order as to costs.

We, however, direct that the order of eviction in each case shall not be executed before 30th of June, 1982 on condition that each of the appellants in the appeals and the petitioner in the special leave petition files an undertaking in this Court within four weeks from today to the following effect:

1. that he will hand over vacant and peaceful possession of the suit premises to the landlord-respondent on or before 30th of June, 1982;

2. that he will pay to the respondent arrears of rent, if any, within a month from today;

3. that he will pay to the respondent future compensation for use and occupation of the suit premises for each calendar month by the 10th of the succeeding month; and

4. that he will not induct any other person in the suit premises as a sub-tenant or licensee or in any other capacity whatsoever.

We further direct that in default of compliance with any one or more of the conditions of the undertaking or if the undertaking is not filed within the stipulated time, the decree of eviction shall become executable forthwith.

N.V.K. Appeal dismissed.


JUDGMENT <NAME>, J.

1. This is a hopeless and frivolous action.

2. The plaintiff, Mr. <NAME>, was employed by <ORG> in a tea garden in Port Blair, in the Andaman Islands. The plaintiff in his plaint alleges that in the month of February, 1887, Mr. <NAME>, the then Officiating Secretary to <ORG>, wrote to the then Superintendent of Port Blair setting out the terms on which the employment of the plaintiff was sanctioned by the Secretary of <ORG>, viz., that after an engagement of three years the plaintiff's services should be retained for an undefined period, on a salary of Rs. 350 a month increasing by annual increments together with a commission of five per cent, on the net profits of the tea garden. There were certain other allowances which were to be made to the plaintiff and he was to be entitled to six calendar months notice if his engagement was to be terminated. The plaintiff further alleges that on the 4th July, 1887, <ORG> decided that the grant of leave to the plaintiff should be regulated by the Rules of the Civil Leave Code applicable to uncovenanted officers of the <ORG>, and such decision was communicated to the plaintiff by and on behalf of <ORG> and was accepted and agreed to by the plaintiff, and thereupon by mutual agreement the Regulations of the Civil Leave Code became a part of the contract between the parties.

3. The plaintiff also alleges that by mutual consent and agreement the terms of his employment were further varied so that he should be entitled to receive one year's notice instead of six months to terminate his employment, and that this and other changes in the terms of his employment were duly sanctioned by the then Secretary of <ORG> and accepted by the plaintiff.

4. On the 17th February, 1905, the then Superintendent of Port Blair wrote to the plaintiff and asked if he was prepared to dispense with the one year's notice to which he was entitled under the terms of his covenant and if he was prepared to leave, the Government would pay him one year's salary and a bonus of £ 200 and he was informed that in any case he must accept that letter as a notice of the termination of his employment.

5. On the 18th July, 1905, <ORG> closed this tea garden and paid to the plaintiff his salary up to the 17th February, 1906, and he also received from the Government the bonus of £ 200 or Rs. 3,000.

6. The plaintiff's case is that he is entitled to damages, one year's salary from the 18th July 1905, and to the commission to which he was entitled under the terms of his contract.

7. Now, the first question is, what is the nature of the plaintiff's employment?

8. That he was employed under the <ORG> there is now doubt.

9. It is a general rule and a well-established principle that the <ORG> in the absence of statutory provision can dismiss any servant in its Civil or Military employ.

10. It is said that it does not apply to the persons employed under <ORG> who are engaged in certain commercial undertakings of the <ORG>. Now, the only right which the plaintiff can have against the <ORG>, which is not the ordinary right of a servant of the <ORG>, is in the event if he had a different right against <ORG>.

11. Section 65 of the statute, (21 and 22 Vict, Chap. 106), gives certain persons a right of action against the Secretary of <ORG>. Now, what was the position of a servant of <ORG> prior to the time when British India was taken over by the British <ORG>?

12. It appears to me that the position of a servant of the <ORG> was exactly the same as the position of a servant of the <ORG>. It is enacted by Section 75 of 3 and 4 Will. IV, Chapter 85 that "Nothing in this Act shall take away the power of the said Court of Directors to remove or dismiss any of the officers or servants of the said <ORG> but that the said Court shall and may at all times have full liberty to remove or dismiss any of such officers or servants at their will and pleasure."

13. The <ORG>, therefore, had exactly the same right of dismissing servants as the <ORG> has, but even in this case, if the plaintiff had a right of action against the <ORG>, I should hold that his suit could not succeed. It seems to me wholly wrong to say that the servant, who had received his notice of dismissal and got his wages for the remainder of the term covered by the notice, could maintain an action for wrongful dismissal. It seems to involve the anomaly that the person dismissed in the eleventh month of the notice would receive a larger amount than if he was dismissed in the first month. I think from the plaintiff's own statements in the plaint that the plaintiff has been treated by the <ORG> with great consideration.

14. It only remains for me to say that the plaint discloses no cause of action against the Secretary of <ORG> and the suit must be dismissed with costs on scale No. 2.


JUDGMENT <NAME>, J.

1. In these criminal appeals Nos. 284 and 285 of 1971 by special leave, seven persons, namely, <NAME>. <NAME> <NAME> <NAME>, <NAME>, <NAME> alias <NAME> and <NAME> had been put on trial for the murder of two persons, namely, <NAME> and <NAME> and were tried by the Sessions Judge, Muzaffarpur, who by his order dated November 30, 1968 convicted the appellant <NAME> under Section 302, I.P.C . to imprisonment for life. All the other accused were convicted under Section 302 / 149 , I.P.C . and sentenced to imprisonment for life. Accused <NAME> was convicted under Section 325 , I.P.C . and sentenced to six months rigorous imprisonment, while the accused <NAME>, <NAME> and <NAME> were convicted under Section 148 I.P.C. and sentenced to one year's rigorous imprisonment. <NAME>, <NAME>, <NAME> and <NAME> were further convicted under Section 147 , I.P.C . and sentenced to six months rigorous imprisonment. The learned Sessions Judge ordered all the sentences to run concurrently. The appellants filed two separate appeals before <ORG> of Patna which dismissed the appeals and affirmed the convictions as also the sentences passed against the appellants. Appellants <NAME>, <NAME>, <NAME>, <NAME> and <NAME> have filed Criminal Appeal No. 284 while <NAME> and <NAME> alias <NAME> have filed Appeal No. 285. As however both the appeals arise out of the same judgment, we propose to decide these appeals by one judgment.

2. This is an unfortunate case in which two persons appear to have lost their lives over a very petty and trivial dispute. On a perusal of the evidence and the circumstances of the case, we feel that the prosecution has not come out with the true version and the result is that the murder of the two persons has to go unpunished, and this is yet another misfortune of the case, but if the prosecution does not choose to put forward the true version it is to be itself squarely blamed for the failure of the case.

3. Briefly put. the facts may be summarised as follows:

Appellant <NAME> and his brother <NAME> were full brothers being sons of <NAME>. They were resident of village Alipur Hatha, police station Mohnar. The deceased <NAME> and one <NAME> were the first cousins of these two persons and the deceased <NAME> was a nephew of <NAME>. It appears from the prosecution case that the two families were living together in the same house in different portions having a common courtyard. There was some sort of partition between the two cousins and their children in which portions of the house were allotted to each branch. <NAME> daughter of <NAME> one of the sons of <NAME> Singh was married on April 18, 1968 and <NAME> and others had fixed a Marwa (marriage platform) in their common court-yard. The marriage passed off peacefully and the appellants <NAME> and <NAME> never objected either to the marriage being held in the court-yard or to the construction of the Marwa. Three days later i. e. on April 21, 1966, which according to the prosecution happened to be the day when the Chauthari ceremony had been performed at about 4 P. M. when <NAME> his father <NAME> Singh and others were sitting in the house the appellants <NAME> and <NAME> armed with Bhala and Bana respectively appeared on the scene and asked <NAME> Singh and <NAME> to demolish the Marwa. <NAME> Singh, however protested and refused to demolish the Marwa because it was customary in the family not to demolish the Marwa until 11/2 months from the date of the marriage had elapsed. This led to an exchange of hot words and an altercation in the course of which other five appellants namely, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> joined the two appellants <NAME> and <NAME> and made a common cause with them in assaulting the two deceased persons <NAME> Singh and <NAME>. According to the prosecution, <NAME> gave orders for assaulting the prosecution party and thereupon <NAME> assaulted <NAME> Singh with a bhala on his head, <NAME> hit him with the lathi portion of his Bana while <NAME> and <NAME> assaulted him with lathis. <NAME> is said to have assaulted <NAME> Singh with a bhala in his abdomen and when he fell down he was assaulted with lathis by <NAME> and <NAME>. <NAME> was also assaulted by <NAME> when he tried to intervene. Thereafter all the accused persons fled away. <NAME> and his brother <NAME> carried the two deceased persons to <ORG> on rickshaw, where they were admitted. The A.S. I. attached at the Mahnar Police Station reached the hospital at 7.55 p.m. on receiving a slip from the Doctor In-charge of <ORG> and found <NAME> Singh and <NAME> Singh unconscious. The ASI recorded the further statement of <NAME> which was treated as the First Information Report. <NAME> Singh however succumbed to his injuries at <ORG>, while <NAME> Singh was advised to be taken to a bigger hospital at Hajipur and there he died the next day. After the usual investigation, the police submitted chargesheet against the seven accused who were put on trial and were convicted as indicated above.

4. The defence was that none of the appellants had participated in the assault at all and the accused had been falsely implicated due to enmity. It was also suggested that so far as the accused, other than <NAME> and <NAME>, were concerned they had absolutely no animus against the two deceased persons, nor had they any connection with the construction or demolition of the <ORG> and had been especially selected for false implication at the instance of their sworn enemies PWs. 1 to 4. The defence of <NAME> and <NAME> was that the two deceased persons and <NAME> had trespassed into their plantain orchard and were cutting away a number of plants and leaves, and when <NAME> protested he was assaulted by <NAME> and others and thereafter in the mutual fight the two deceased were assaulted in exercise by the accused and others who had assembled nearby. Thus a very significant factor which we find in this case is that there are two groups of accused who are totally unrelated to one another. <NAME> is the father of <NAME> and <NAME>. <NAME> and <NAME>, though not relations, appear to have been the supporters of these three accused. None of these accused, however, appear to have any concern or connection with the deceased or the members of their family, but they have been on inimical terms with PWs 1 to 4. In fact the evidence shows that there were two warring factions in the village - one headed by the accused, and the other headed by PWs 1 to 4 - and various types of cases were fought between these two groups.

5. Both <ORG> and the learned Sessions Judge have clearly found that there was serious enmity between the accused <NAME>, <NAME>, <NAME>, <NAME> and <NAME> on the one hand and PWs. 1 to 4 on the other. This finding has been confirmed by <ORG> which, while dwelling on this aspect of the matter, observed as follows:

It is sufficient to mention that, on the admissions made by these witnesses, it has been proved that there have been litigations between these witnesses (PWs. 1, 2, 3 and 4) on the one hand, and the appellants of Criminal Appeal No. 479 of 1968 (<NAME>, <NAME>, <NAME>, <NAME>, <NAME> or <NAME>), on the other. This fact cannot be disputed. It is also clear that there are two factions in the village, both antagonistic to each other. PWs. 1, 2, 3 and 4 belong to one faction and the appellants to the other.

In view of the peculiar feature of this case, we have to approach the evidence of the eye-witnesses with very great caution, because they would undoubtedly be interested in implicating the group of the accused headed by <NAME>. We would, therefore, like to indicate the nature of enmity between this group of accused and PWs. 1 to 4. We have it from the evidence of PW. 1 that PW.1, PW.2 <NAME> and PW. 4 <NAME> were involved in a murder case under Section 302 I.P.C. in which <NAME> accused was a witness against them. Apart from this, PW. 1 has further admitted that there was a Title Suit No. 231 of 1961 in <ORG> Hajipur, between the appellant <NAME> and PW. 3 <NAME> in which the witness had deposed for <NAME>. The witness sought to deny the allegation that <NAME> had brought a criminal case against him. But this fact is proved by Ext. B at page 151 of the Paper Book which is a complaint dated June 30, 1962 filed by the appellant <NAME> against PW. 1, PW. 3 and others. PW. 1 candidly admits that <NAME> and <NAME> and his sons and <NAME> had absolutely no concern with the <ORG>.

6. Similarly PW. 2 <NAME> admitted that PW. 4 <NAME> was his cousin. He, however, admitted that he along with PW. 1 <NAME> and PW. 4 <NAME> were accused in criminal case under Section 302 , I.P.C . in which the appellant <NAME> had deposed against him.

7. Similarly PW-3 <NAME> has also admitted enmity with the group of accused headed by <NAME>. He admits in clear terms that the appellant <NAME> had instituted a Title Suit No. 231/61 against him which is still pending and in which while <NAME> had deposed against him, PW. 1 <NAME> and PW. 4 <NAME> had deposed for him. He tries to deny the knowledge of the Title Suit filed by <NAME> against the witness and PW <NAME> in which <NAME> was a witness to the service of summons of the suit on him. But this fact is conclusively proved by Ext. G. appearing at page. 155 of the Paper Book which clearly shows that <NAME> was one of the witnesses who had signed in token of the fact that the summons had been served on <NAME>. The witness further admits that during the pendency of Title Suit No. 231/61 the <NAME> had filed a complaint for the prosecution of this witness in which he was acquitted by <ORG>. He denies knowledge of the fact that <NAME> had deposed against him in that case but this is proved by the judgment dated September 17, 1964 Ext. I appearing at page 159 of the Paper Book and the deposition of <NAME> in that case which is Ext. J and appears at p. !63 of the Paper Book. The witness further admits that the appellant <NAME> had deposed against him in the year 1968 in Title Suit No. 231/61. Apart from this PW. 6 <NAME> admits that this witness was his <NAME> (near relation).

8. PW. 4 <NAME> has admitted that he had deposed against <NAME> in Title Suit No. 231/61. He also admits that he was an accused in a murder case in which <NAME> had deposed against him.

9. PW. 6 is <NAME> one of the sons of the deceased <NAME> and the brother of the deceased <NAME>. This witness admits that PW. 3 <NAME> is his <NAME> and that he had taken the mortgage bond from PW-1 <NAME>.

10. These are the only witnesses who have proved the participation of the five appellants in the assault. No independent witness had been examined by the prosecution to support the assault. In fact PW-1 <NAME> has admitted that when he reached the place of occurrence he found 6 to 7 persons of the village and yet none of them have been examined to corroborate the evidence of the interested or inimical witnesses examined by the prosecution. Moreover the evidence of PWs. 1 to 4 clearly shows that they gave graphic description of the assault with regard to the order, the manner and the parts of the body with absolute consistency which gives an impression that they have given a parrot-like version acting under a conspiracy to depose to one set of facts and one set of facts only. It was strongly contended by counsel for the appellants that PWs. 1 to 4 who are sworn enemies of the appellants headed by <NAME> have combined in a conspiracy to implicate the appellants falsely because of the long ending litigation between them and the witnesses. It seems to us that taking the entire picture of the narrative given by the witnesses, in the peculiar facts of this case, the contention cannot be said to be without substance. The most important fact which reinforces this conclusion is that the accused headed by <NAME> had absolutely no motive, no reason and no concern with the deceased or their relations and there was absolutely no earthly reason why they should have made a common cause with <NAME> and <NAME> over what was a purely domestic matter between <NAME> and his cousins. It seems to us that having regard to the serious enmity which P. Ws. 1 to 4 had against the appellants headed by <NAME>, they must have made it a condition precedent to depose in favour of the prosecution or support the case only if Desai Singh P.W. 6 would agree to implicate the appellants <NAME> and others and to assign them vital roles in the drama staged so that the witnesses could get the best possible opportunity to wreak vengeance on their enemies. In fact the prosecution evidence itself shows that to begin with a dispute started only between <NAME> and <NAME> on the one hand and <NAME> and <NAME> on the other and the other accused persons appeared on scene later on. This dramatic appearance of the other accused persons seems to have been introduced as an embellishment in the case at the instance of P. Ws. 1 to 4. There are other infirmities in the prosecution case also which throw a serious doubt on the prosecution case.

11. P.W. 8 Dr. S. P. Jaiswal who had examined <NAME> deceased and had conducted the postmortem of the deceased had also examined the accused <NAME>, whom he identified in the Court, on April 22. 1966 and found the following injuries on his person:

1. Bruise 3" x 1/2" on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle.

2. Incised wound 1" x 2 m. m. x skin subcutaneous deep on the late ral part of the left upper arm, near the shoulder joint.

3. Punctured wound 1/2" x 2 m. m., x 4 m. m. on the lateral side of the left thigh about 5 inches below the hip joint.

According to the Doctor injury No. 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that <NAME> must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor it is believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused <NAME> in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eye-witnesses could have given such graphic details regarding the assault on the two deceased and <NAME> and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before <ORG> and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in <CITATION> tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant <NAME> also. In the case referred to above, this Court clearly observed as follows:

The trial Court as well as <ORG> wholly ignored the significance of the injuries found on the appellants. <NAME> had sustained as many as 13 injuries and <NAME> 14. We get it from the evidence of <NAME> he noticed injuries on the person of <NAME> when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly pro-babilised. Under these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.

This <ORG> clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue: and (2) that the injuries probabilise the plea taken by the appellants. <ORG> in the pre-sent case has not correctly applied the principles laid down by this <ORG> in the decision referred to above. In some of the recent cases, the same principle was laid down. In <NAME> v. <ORG> decided on April 25, 1975 : which was also a murder case, this <ORG>, while following an earlier case, observed as follows:

In State of Gujarat v. <NAME> Criminal Appeal No 67 of 1971 decided on March 19, 1975 : ) one of us (<NAME>, <NAME>, speaking for the <ORG>, observed as follows:

In a situation like this when the prosecution fails to explain the in juries on the person of an accused, depending on the facts of each case, any of the three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

The facts of the present case clearly fall within the four corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case. It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has sup- pressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosedition one. In the instant case, when it is held, as it must be, that the appellant <NAME> received serious injuries which have not been explained by the prosecution, then it will be difficult for the <ORG> to rely on the evidence of PWs. 1 to 4 and 6 more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High <ORG> appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this <ORG> in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High <ORG> was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.

12. On the other hand it is the definite case of <NAME> that the prosecution party had entered the plantain or chards of <NAME> and <NAME> and were trying to pluck plantain leaves and plants on which he protested and was assaulted and consequently the deceased too were assaulted in self-defence. As the appellant <NAME> had a grievous injury, it cannot be said that the accused had no right off private defence. The fact that the Investigating Officer PW. 10 found 100 plantain trees in the Orchard of <NAME> and further found that leaves of the plantain plants had been cut out of the 6 plants of the western side and 4 plants of the eastern side probabilities the defence version. Even the prosecution witnesses have not disputed that the appellants had their orchard of plantains, because <NAME> has tacitly admitted that the northern plantain groves belonged to <NAME> and <NAME>.

13. To add to this another important circumstances is the omission on the part of the prosecution to send the bloodstained earth found at the place of occurrence for chemical examination which could have fixed the situs of the assault. In almost all criminal cases, the bloodstained earth found from the place of occurrence is invariably sent to the Chemical Examiner and his report along with the earth is produced in the <ORG>, and yet this is one exceptional case where this procedure was departed from for reasons best known to the prosecution. This also, therefore, shows that the defence version may be true. It is well settled that it is not necessary for the defence to prove its case with the same rigour as the prosecution is required to prove its case, and it is sufficient if the defence succeeds in throwing a reasonable doubt on the prosecution case which is sufficient to enable the <ORG> to reject the prosecution version.

14. There is yet another important circumstance which completely falsifies the evidence of the eye-witnesses. All the eyewitnesses have consistently deposed that after the deceased <NAME> was assaulted by <NAME> and fell down,, the appellants <NAME> and <NAME> assaulted him with lathis. Yet the medical evidence of Dr. <NAME> shows that there was only one solitary injury on the person of the deceased <NAME> and that was on the abdomen. No other injury of any kind\ was found by the Doctor on any part of the body of <NAME> the absence of lathi injuries on the person of <NAME> completely falsifies the evidence of the eyewitnesses on a most material point Mr. <NAME> appearing for the <ORG> tried to explain away this important lacuna on the ground that the inquest report shows that there were some sort of injuries on the back of the body of the deceased <NAME> which may have disappeared by the time the Doctor examined the deceased <NAME>. We are, however, unable to agree with this somewhat far-fetched explanation. It was for the prosecution to corroborate the evidence of the eye-witnesses through expert evidence of the Doctor, and if no lathi injuries were found it was affirmatively for the prosecution to give reasons for the same. No question was, however, put to the Doctor in reexamination that if the deceased had received lathi blows the injuries could have disappeared, by the time the Doctor examined the deceased. Moreover, the inquest report also does not show any particular physical injury on the person of <NAME> but merely mentions a swollen injury on the back which may be due to the fact that the deceased <NAME> fell down after receiving the bhala blow. The Sub-Inspector was not an expert on the subject and his observation in the inquest report is absolutely valueless. Thus in short, so far as the deceased <NAME> is concerned, the ocular evidence is totally inconsistent with the medical evidence with respect to the assault by <NAME> and <NAME>. If this matter is false, there is no guarantee that the other assault deposed to by the eyewitnesses was also not false.

15. Similarly so far as deceased <NAME> is concerned, the evidence of the witnesses shows that he had received 4 to 5 lathi blows at the hands of his assailants, but the medical evidence of Dr. <NAME> shows that he had one lacerated wound on the scalp, a swelling and three scratches. In view of the ocular evidence we should have expected many more lathi injuries on the person of the deceased <NAME> rather than just one swelling and a few scratches, apart from the lacerated wound. Thus this is also a very important suspicious circumstance which negatives the truth of the prosecution case.

16. Finally we might stress, even at the risk of repetition, that the genesis and the origin of the present occurrence appears to be shrouded in deep mystery. The dramatic manner in which the assault is said to have started and the appearance of the accused led by <NAME> without any rhyme or reason and their assault on persons against whom they had neither any concern or animus introduces an element of inherent improbability in the case. According to the prosecution the main cause of the assault was the refusal of the deceased <NAME> to demolish the <ORG> which was constructed on the occasion of the marriage of <NAME> a daughter of the son of <NAME>. There is no evidence to show that there was bad blood between <NAME> and <NAME> on the one hand and their cousins <NAME> and <NAME> on the other. On the other hand the evidence shows that even after the partition both the groups of the family were living in different portions of the same house, the courtyard being common. PW-6 <NAME> clearly admits that at the time of fixing the <ORG> he had no quarrel with <NAME> or <NAME>, i.e. about 3 days before the occurrence. If the relations between the parties were so cordial only 3 days before the occurrence, we fail to see how <NAME> and <NAME> made a complete somersault and picked up a quarrel over the demolishing of a <ORG> when they knew full well, as <ORG> would have us believe, that it was customary that the <ORG> remained in its original position until a period of 11/2 months had elapsed. After all <NAME> and <NAME> also belonged to the same family and were bound to respect the family and were bound to respect the family custom. It is difficult to believe that even if <NAME> and <NAME> would raise any objection, they would do so on the day on which Chauthari ceremony of the marriage of <NAME> was held. It also surpasses our comprehension that even if a petty objection was raised, it would culminate in the murder of two close relations by the accused <NAME> and <NAME> with the aid of the other appellants. So far as the five appellants,namely, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> are concerned, they had neither any animus against the prosecution party nor any friendship with the accused <NAME> and <NAME> and it is impossible to believe that these five persons would join hands with <NAME> and <NAME> in the nefarious plan to kill two persons without any provocation, without any earthly reason and without any pertinent occasion. On the other hand the preponderance of probabilities seems to indicate that these five appellants had been falsely implicated by P. Ws. 1 to 4 who were their sworn enemies and who must have made it a condition precedent for supporting the evidence of P.W. 6, if the five appellants are also brought in. In this view of the matter, the prosecution case itself becomes wholly improbable. Furthermore, if P. Ws. 1 to 4 and 6 could go to the extent of falsely implicating the five appellants headed by <NAME> without their having participated in the occurrence, then the entire fabric of the prosecution case would collapse, and the fundamental part of the prosecution case would have to be disbelieved. It was, however, contended by the <ORG> that there was no reason to disbelieve the evidence with respect to <NAME> and <NAME>, even if the other five appellants be acquitted. Where all the witnesses enter into a conspiracy to implicate five innocent per- sons in a murder case, then the backbone of the prosecution is broken, and it would be difficult for the <ORG> to rely on such evidence to convict a single accused, particularly when the prosecution does not give any explanation for the grievous and other serious injuries on the person of <NAME>. This is a case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. Indeed if one tries to do so, it will amount to reconstructing a new case for the prosecution which cannot be done in a criminal case.

17. Thus in view of the inherent improbabilities, the serious omissions and infirmities, the Intrrested or inimical nature of the evidence and other circumstances point- ed out by us, we are clearly of the I opinion that the prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt. Normally <ORG> i does not interfere in an appeal by i special leave with concurrent finding of fact, but this is one of these cases where the judgment of <ORG> is manifestly perverse and where <ORG> has not considered important circumstances which completely demolish the prosecution case. In fact <ORG> has hardly made any real attempt to analyse or discuss the evidence and has merely affirmed the finding of the Sessions Judge by narrating the evidence relied upon by it. We have already pointed out that on one of the most important points arising in : a criminal trial, namely, the non-explanation of the injuries on the person of the accused by the prosecution, <ORG> has not only committed an error of fact but an error of law by showing a lack of proper appreciation of the principles decided by <ORG>. For these reasons, therefore, we think! there are special circumstances in the present case which have compel-led us to interfere in this appeal by special leave.

18. The appeals are accordingly allowed, the convictions and sentences passed on the appellants are set aside and all the appellants are acquitted of the charges framed against them. The appellants are directed to be set at liberty forthwith.


<ORG>, J.

1. The only question to be decided on this appeal is, whether the appellant's husband <NAME>, who died on the 23rd of April 1867, died intestate, as the appellant alleges, or left a will, as the respondents contend. If he did make that will, the appellant is out of Court. The Subordinate Judge of <NAME> decided in the appellant's favour, holding that the will was a forgery ; but <ORG> at Fort William reversed that decision, and dismissed the appellant's suit, with costs.

2. <NAME>, who married <NAME>, and died many years before 1867, left three sons, who succeeded to their father's property, viz., <NAME>, the appellant's husband; <NAME>, who died about 1870, and whose sons are the respondents on this appeal; and <NAME>, who died before 1867, intestate and unmarried, whereupon his mother <NAME> succeeded to his share in the father's estate.

3. <NAME> resided at Sarippur or Kasimpur, in the district of Rajshahye; but some months before his death he removed to <NAME>, on account of his health, and there he remained until he went to Rampura. There is no doubt that while at <NAME> he was very ill, and ultimately his recovery was considered hopeless. While he was there a cousin and great friend of his named <NAME>-who seems to have been in a superior station in life and had received the title of <NAME>-came over to <NAME>, and took <NAME> back with him to his own house at Rampura, where he stayed till he died. The appellant and one of her witnesses say the death was only two days after the removal; while two witnesses for the respondents put it at five or six days and 10 or 12 days respectively. The doctor also who was called in at Rampura says he attended him for five or six days, and he saw from the first that the case was hopeless. On the day before his death, according to the respondents' evidence, he went to <ORG>, and there at 4 p. m. presented for registration the will in dispute. It bore his signature and seal, and was attested by five witnesses. Four of those witnesses died before the trial; but the fifth, the doctor of <NAME>, was called as a witness. The execution of the will was admitted by <NAME>, who was identified, by two witnesses, and then the will was registered. Each of these four stages was verified by the signature of <NAME>, the Registrar. This was on the 22nd of April 1867.The doctor says in his evidence that he signed this will in the presence of <NAME>, and at his request, after some discussion with him as to whether he should make a will or not. He thought he attended <NAME> for five or six days. He said that many other persons were present when he signed the will, but he did not know whether any other witness or the testator had signed when he did. He also said that many respectable people, came in to see the testator during the time of his attendance. The Subordinate Judge declined to believe this witness because there was some doubt as to an apparent alteration in the date of his attestation of the will, and the explanation he gave was not clear. But this is not wonderful, as the event had happened 31 years before; and <ORG> thought, and their Lordships think, that the reasons for not giving weight to $he evidence of this witness are quite insufficient.

They: see no reason to doubt his veracity.

4. Another reason why the Subordinate Judge doubted the validity of the will was on the ground of the absence of any other respectable witnesses to it besides the doctor, and the probability that other persons were present who would have been more likely to be asked to attest it than the persons whose signatures were affixed to it. But there is not one word in the evidence affecting the respectability and competency of the four attesting witnesses, all of whom were dead before the trial.

5. Then the Judge also stated that "the general reputation of character which the two identifiers in the registration office enjoyed" tended to throw a cloud of doubt upon the bona fides of the transaction. Such evidence of the general reputation of the character of those persons (who are both dead) ought not to have been admitted at all. But it was admitted, and is insufficient to prove what it was said to prove. It would be waste of time to discuss it. But that the signatures of the identifiers were their true signatures was clearly proved.

6. Then another circumstance relied upon by the learned Judge was " the untimely hour of registration at the registration office, .... though the testator was so weak that he did not survive even 24 hours." The hour was 4 p. m. which prima facie is not unreasonable ; and if the evidence of the appellant is to be believed her husband had taken a much longer journey (from Nattore to Rampura) on the previous day without apparently being any worse from it. The appellant also says that on the day in question many gentlemen of the town came in and saw her husband. Then <NAME>, who was at the <ORG>, says that he sow <NAME> arrive there in a palanquin to get the will registered, and saw him sign and seal the registration. A little further on he says that at the request of <NAME> he came to see him at Rampura four or five days before his death; that sometimes he was helped to sit up, and sometimes used to get and sit up himself unaided; that on the morning of the next day he told him a will had been executed, and showed him the will, but did not request him to be a Witness'; that for two or three days before his death he could at times get up and sit up unaided, but from one day before his death he lost the power of getting and sitting up unaided. He was taken in a palanquin. The mukhtar <NAME> helped him to sit up, and he sat up and admitted the will. Then <NAME> says that on the day just preceding his death he saw him going out of his lodgings in a palki, with a view to go to the <ORG>. This evidence would-be quite sufficient, in their Lordships' opinion, to answer the observations of the Subordinate Judge. But they desire to put the case on a higher ground. The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature, will be presumed to be done duly and in order. Of course it may be shown that a deliberate fraud upon him has been successfully committed; but this can only be by very much stronger evidence than is forthcoming here. And this must be specially borne in mind, that no witness has been found who will say that the signature of <NAME> in the will and in the Registrar's book is not in his handwriting. The contrary is expressly stated by <NAME>, who adds that his signatures when, in good health were better than these. The learned Judge did not believe this witness; nor that he was present at the time, upon the ground that if he had been he would probably have been invited to attest the will; but this difficulty does not weigh much with their Lordships.

7. It is also suggested that <NAME> was presumably under the influence of his brother <NAME> and was very possibly induced by him to make the will. This assumes, of course, that it was executed by him. But this suggestion was not raised by the pleadings,; and is entirely unsupported by any evidence, and need not be further considered. The will does not seem unreasonable for a gentleman in the position of <NAME>, and has a genuine look about it. The testator says that, considering the realness of his property, he does not wish to adopt a son, and vests his property in his brother <NAME>, that he may perform all ceremonies and maintain his wife during her life, and his four unmarried daughters, and also give those daughters in marriage, and, if there was any difficulty about living together, the appellant was to have from <NAME> an allowance of Rs. 120 a year at the rate of Rs. 10 a month for her maintenance, which allowance <NAME> should get after the wife's death. He then added that he had married his eldest daughter, and she was to have Rs. 48 a year for her maintenance at the rate of Rs. 4 a month, and he provided that if <NAME> did not pay the allowance and daughters' money then he charged them on his estate. Subject to the above the estate was to go to <NAME>.

8. But it is said that the will was suppressed and never acted on. This also is not in accordance with the evidence. It has been proved that the allowance to the eldest daughter has always been paid; that the younger daughters have been provided for out of the estate on their marriages; and that the appellant also has been paid first Rs. 10, afterwards Rs. 15, and after that Rs. 20 per month, the reason for the increase being that she complained that her allowance was not sufficient, and some increase should be made. The Subordinate Judge said that the will was wisely and prudently kept dark, and that the fact that the appellant was paid twice as much as she was entitled to under the will showed that there was something rotten in the core of the will, and therefore precaution was taken that the appellant should have no occasion to dispute it. Their Lordships deprecate this suggestion as not supported by any of the proofs in the case ; and have no doubt that the increase of allowance was made by Mathura at the suggestion of <NAME>, for the reason above mentioned. Excluding the evidence of the appellant, which <ORG> declined to accept as reliable, there is no evidence that the appellant ever claimed any share in the income of the estate.

9. Their Lordships are clearly of opinion that the decision of <ORG> now appealed from was correct, and should be affirmed; and they will humbly advise His Majesty that this appeal should be dismissed.

10. The appellant must pay the costs of the appeal.