judgement:
Appeal No. 1258 of 1967.
Appeal by Special Leave from the Judgment and Order dated the 10th July 1963 of the Mysore High Court at Bangalore in Second Appeal No. 345 of 1961.
710 section section Javali, B. P. Singh and B. R. Agrawala for the appellants.
K. N. Bhatt and Saroja Gopalakrishnan, for respondents Nos. 1 3.
The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.
The appellants who were the plaintiffs filed a suit against the respondents the defendants for partition, separate possession of their 7/20th share of suit properties and for mesne profits.
The Trial Court decreed the suit, but the High Court dismissed it.
This appeal is by special leave against that judgment.
Prior to the Hindu Succession Act, XXX of 1956 (hereinafter referred to as 'the Succession Act) the parties were governed by the Aliyasantana Law and the question before us is whether their rights are to be determined in accordance with that Law or under the Succession Act.
It is not disputed that Chandayya Shetty, who died on February 13, 1957 after coming into force of the Succession Act, and the first respondent are brother and sister respectively.
The first appellant is the widow and appellants 2 to 6 are the sons of Chandayya Shetty, while respondents 2 to 4 are the sons of the first respondent.
In order to appreciate the contentions, urged before us, it would be necessary to first set out certain underlying concepts of the Aliyasantana customary law, the changes made by the Aliyasantana Act (Madras Act IX of 1949) hereinafter referred to as "the Madras Act" and the relevant provisions of the Succession Act.
The Aliyasantana Law is a part of the customary law which governed certain communities on the West Coast of South India.
The basic principle underlying the joint family composition, otherwise known as kutmba or tarwad, under the customary law known by two different names, namely, marumakkattayvam and aliyasantana, is the matriarchal system, in which the devolution is through females.
The meaning of the two words by which the systems are known literally connotes 'inheritance in the line of nephews ' or sisters ', sons.
Apart from a few differences in these two systems.
it may be noticed that while the marumakkattayam system was applicable to all castes, the aliyasantana system is ' not followed by the Brahmins (See P. R. Sundra Iyer 's Malabar and Aliyasantana Law, 1922 Edn. 247).
It is chiefly followed by the Bunts, the Bilwa caste and the non priestly class among the Jains (See Myne 's Hindu Law, 1950), 11th Edn. 971).
A kutumba under the Aliyasantana customary law was a family corporation: every member born in it has equal rights in the property owned by it.
On the death of any member of the kutumba his or her interest in the kutumba property devolved on the other members of the kutumba by survivorship.
The limited estate of Hindu female familiar to the Mitakshara Law was unknown to this ,system, for under it every male and female member had equal rights in the kutumba property.
Under this law, though partition could not be enforced at the instance of on( , or more members and the members of the kutumba would be entitled to maintenance.
it could be effected at the instance of all the adult members thereof.
It may, however, be noticed that 'since the basis of the system was matriarchal, the children 711 of the female members alone were the coparceners in the kutumba, but not the wife and the children of the mate members.
This customary law as applicable in certain areas of the Madras Province and in the erstwhile princely State of Travancore and Cochin was modified by the laws enacted by the respective legislatures.
In this case we are concerned with the Madras Ast which defined and amended in certain respects the laws relating.
to marriage, guardianship, maintenance, intestate succession and partition applicable to persons governed by that customary law.
In respect of matters which this Act did not affect, the prevailing customary law was saved by section 39 of the Madras Act which provided : "Nothing contained in this Act shall be deemed to affect any rule of Aliyasantana Law, custom or usage, except to the extent expressly laid down in this Act.
" The Madras Act conferred a right to partition properties and the mode of ascertainment of shares on partition.
These provisions are dealt with in Ch.
VI of that Act.
Before examining the provisions of the Madras Act and the Succession Act it may be mentioned that Chandayya Shetty had executed a Will on January 15, 1958 bequeathing his interest in favour of the appellants ie.
his wife and children.
A week thereafter on January 22, 1957, the first respondent and her children issued a notice to Chandayya Shetty stating that he Chandayya Shetty) was the manager of the undivided family, that he was a nissanthathi kavaru (branch) while the respondents were santhathi kavarus, as such there were only two kavarus and that they had decided to divide the properties between Chandayya Shetty and themselves.
They, therefore, demanded under the Madras Act a share belonging to their kavaru from out of the entire movable and immovable properties of the family.
Chandiyya Shetty replied on January 24, 1957, denying that the respondents ' family was a santhathi kavaru, but was a nissanthethi kavaru as the first respondent was more than 50 years old on the date of the said notice and had no female issue.
He, however, admitted that there are only two kavarus in the family, and as both the kavarus were nissanthathi kavarus, each kavaru was therefore entitled to an absolute share in the kutumba pro perties.
He also stated that he had no objection to the claim for partition made by the respondents and was prepared to effect it provided the respondents cooperated.
After this reply notice, Chandayya Shetty died, as already stated, on February 13, 1957.
On March 23, 1957, the appellants i.e. Chadayya Shetty 's widow and her children gave a notice to the respondents claiming a separate share under the Will of Chandayya Shetty.
A reply was given on the same day by the respondents denying that the appellants had any share because according to them Chandayya Shetty was entitled only to a life interest under the Aliyasantana Law.
On these facts it may be necessary to ascertain under the provisions of the Madras Act the interest which Chandayya Shetty had in the joint family properties on the date of his death, whether a partition had 712 been effected,. whether his will is effective in respect of his share, whether he had a life interest in the properties, and whether under the provisions of the Succession Act that interest had been enlarged into an absolute interest which could be bequeathed by a Will.
Before examining the provisions of Ch.
VI of the Madras Act which deal with partition, it will be useful to ascertain, what under that Act is a 'kutumba ' and a 'kavaru ', and what is meant by a 'santliathi kavaru ' and a 'nissanthathi kavaru '? A 'kavaru ' has been defined in section 3 (b) (i) in relation to a female as meaning "the group of persons consisting of that female, her children and all her descendants in the female line", and under section 3 (b) (ii) when used in relation to a male as meaning "the kavaru of the mother of that male".
Under section 3(c) 'kutuniba ' means "the group of persons forming a joint family with community of property governed by the Aliyasantana Law of inheritance".
Under section 3 (f) 'nissanthathi kavaru ' has been defined as meaning "a kavaru which is not a santhathi kavaru", and 'santhathi kavaru ' under section 3 (h) means "a kavaru of which at least one member is a female who has not completed the age of fifty years".
It is apparent from these definitions that the basic concept of inheritance through a female has been maintained under this Act in that the presence of even one female in the kavaru will have the effect of continuing the kavaru, and the absence of a female would amount to the absence of progeny a nissanthathi liable to the extinction of the branch.
Keeping in view these definitions, section 35, which provides for partition may now be read "35.
(1) Any, kavaru represented by the majority of its major members may claim to take its share of all the properties of the kutumba over which the kutumba has power of disposal and separate from the kutumba: "Provided that .
(i) where a kavaru consists of only two persons, such a claim may be made by either of them; (ii) no kavaru shall make such a claim during the lifetime of any ancestress common to such kavaru and to any other kavaru or kavarus of the kutumba, who has not completed fifty years of age, unless (a) she has signified her consent in writing, or (b) two thirds of the major members of the kavaru join in making the claim for partition; (iii) the common ancestress may on her own volition claim a partition.
(2) The share obtained by the kavaru shall be taken by it with all the incidents of kutumba property.
Explanation.
For the purposes of this Chapter (a) a male member of a kutumba, or a female member thereof who has no living descendant in the female line, shall be deemed to be a kavaru if he or she has no living female ascendant who is a member of the kutumba; 713 (b) such male member, or such female member if she has completed the age of fifty Years, shall be deemed to be a nissanthathi kavaru." Under section 36(1) any kavaru entitled to partition under section 35 shall be allotted a share of, the kutumba properties in accordance with the provisions of sub section
(2), and the share of a kavaru at a partition under sub section
(2) (h) shall be ascertained as on the date on which it make a claim for partition.
Explanation to that sub section provides that : "For the purposes of this sub section, the date on which a partition is claimed shall be (a) where the claim is made by a suit for partition, the date of the institution of the suit (whether the suit is prosecuted or not); and (b) where the claim is made otherwise than by a suit the date on which such claim is made.
" The following sub sections (3) to (5) on which reliance has been placed are also given below : "(3) If, at the time of the partition, any kavaru taking a share is a nissanthathi kavaru, it shall have only a life interest in the properties allotted to it, if the kutumba from which it separates has at least one female member who has not completed the, age of fifty years, or where the kutumba breaks up into a number of kavarus at the partition, if at least one of such kavarus is a santhathi kavaru and if there is no such female member or santhathi kavaru, the kavaru shall have an absolute interest in the properties allotted to it.
(4) In the case referred to in sub section (3), the life interest of the nissanthathi kavaru in the properties allotted to it at the partition shall become absolute, if the kutumba concerned ceases to have among its members a female who has not completed the age of fifty years or if all the kavarus into which the kutumba broke up, whether at the same or at a subsequent partition, become nissanthathi kavarus.
(5) The properties allotted to a nissanthathi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members, shall devolve upon the kutumba, or where the kutumba has broken up, at the same or at a subsequent partition, into a number of kavarus, upon the nearest santhathi kavaru or kavarus.
" The position that emerges on a consideration of these provisions is that, any kavaru represented by the majority of its major members can claim its share of all the properties of the kutumba over which the kutumba has power of disposal.
It may thereafter take its share and separate from the kutumba, provided that where a kavaru consists of only two persons, such a claim can be.
made by either of them 714 but no kavaru can make such a claim during the life time of any common ancestress who is common to such kavaru and to any other kavaru or kavarus of the kutumba, who has not completed fifty years unless she has signified her consent in writing or two thirds of the major members of the kavaru have joined in making the claim for partition.
The common ancestress can however on her own volition claim a partition.
The share obtained by the kavaru on partition is taken with all the incidents of a kutumba property.
Under section 36 of that Act the property of a kutumba is on partition divisible in a certain proportion for a period of fifteen years from the commencement of that Act and thereafter all the property, is to be divided per stripes and each kavaru gets a share on that basis.
The provision is also applicable to every kavaru possessing separate property as if it were a kutumba.
However, under sub section
(3) of section 36 of that Act if at the time of the partition any kavaru taking a share is a nissanthathi kavaru it would have only a life interest in the property allotted to it if the; kutumba from which it separated has at least one female member who has not completed the age of fifty years or where the kutumba broke up into a number of kavarus at partition if at least one such kavaru is a santhathi kavaru.
But if there is no such female member or santhathi kavaru the nissanthathi kavaru would have an absolute interest in the properties allotted to it.
Sub section (4) of that section provides for circumstances under which the life estate in a ,divided share above referred to becomes absolute property ' and sub section (5) of that section provides that the properties allotted to a nissanthathi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members devolves upon the kutumba or where the kutumba is broken up at the same or at a subsequent partition into a number of kavarus, upon the nearest santhathi kavaru or kavarus.
See Gupte 's Hindu Law of Succession, 2nd Edn., (p. 484).
It is apparent from a reading of these provisions that in this case there were only two kavarus and that one of them was santliathi kavaru and the other a nissanthathi kavaru.
The kavaru of Chandayya Shetty was a branch which was liable to extinction as he had no female progeny.
The appellants however sought to characterise the kavaru of the respondents as a nissanthathi kavaru because though there was a female, namely, the first respondent, she was said to be not under fifty years, for if this was so, then since both the kavarus would be nissanthathi kavarus, at a partition each of the two kavarus would take an absolute interest.
But when there are two kavarus if one is sintbathi kavaru and the other a nissanthathi kavaru, at a partition the nissantbathi kavaru would take only a life interest.
The attempt to establish that the respondents ' kavaru was a nissanthathi kavaru having failed, as, both the Courts held that the first respondent was below 50 years.
the learned Advocate for the appellants made strenuous attempts to persuade us, that in fact the giving of a notice by the first respondent does not effect a partition of the kutumba or between the two kavarug, and that even if this be not established, section 7(2) of the Succession Act read with its Explanation has the effect of enlarging a 715 life interest into an absolute interest.
If so, the learned Advocate submits that Chandayya Shetty had an interest in the properties which he could bequeath by Will.
It appears to us that the provisions of the Madras Act particularly section 36(2)(h) with its Explanation without doubt indicates the time when a share of kavaru is ascertained or a partition in the family and "whether property,is divided by metes and, bounds or not the share in property has to be determined as on the date when the claim is made.
In this case, the claim was made on January 22, 1957 and, therefore, the share of the parties has to be determined as on that date even though the physical partition of the properties by metes and bounds may take place some time later.
The argument that though a claim may be made, no partition may.
ever take place, and consequently there is no partition of the kavarus, is a speculation which cannot affect the principle applicable for determining, whether or not a partition takes place and if so when.
it may be that even though a notice bad been given for partition of the properties, the parties may later choose to live together and the notice withdrawn.
But that is neither her nor there.
What we have to ascertain is whether there, has been a partition in the family or whether the family is still undivided for the purposes of section 7(2) of the Succession Act.
The learned Advocate for the appellants has made a great play on the words "undivided interest in the property" in section 7(2) of the Succession Act, as in his submission when Chandayya Shetty died, he had undivided interest in the kutumba properties and hence the provisions of the Succession Act applied and the appellants were entitled to their shares.
This contention of the appellants no doubt finds support from the District Judge who observed that section 7 (2) does not speak about a division in status, but only speaks about a division in property and that it would be wrong to import the provisions of the Aliyasantana Act in interpreting the Hindu Succession Act which prevails in spite of any provisions under the Aliyasantana Law.
There was, according to the District Judge, nothing in section 7(2) of the Act which states that the person who dies after the commencement of the Act should not only have an undivided interest but he should also have been an undivided member of the kutumba, and it would be wrong to introduce words which are not in the Act.
According to him under section 7(2) of the Act if the kutumba properties had not been divided and the deceased had not been allotted any portion of the kutumba properties, then he continued to have an undivided interest in the properties at the time of his death,_ and on his death his share is inherited by his legal heirs under the Act.
The, learned Advocate again drew support from the ,observations made by the District Judge that even if the provisions of the Madras Act could be taken into consideration in interpreting the provisions of the Succession Act, then sub section
(3) of section 36 could not be invoked to say that even where an allotment could have been made, but was not made, there would have been an allottee who was only entitled to life estate.
According to the District Judge, section 36(3) of the Madras Act comes into operation only when there has been a partition and allotment of a definite share, the share to be ascertained 716 as at the time the partition was claimed.
But, when there has been no partition and no allotment of a share, then section 36(3) has no operation and the person who formed a nissanthathi kavaru, if he dies without getting allotted his share in the kutumba properties, dies with an undivided interest in the kutumba properties, and, therefore, section 7(2) of the Succession Act comes into play.
This view of the District Judge has been held to be erroneous by the High Court.
To ascertain which view is correct, we will have to examine, the relevant provisions of the Succession Act and ascertain whether on Chandayya Shetty 's death, he had an undivided interest which he could dispose of by will and if he had a life interest whether.
it had been enlarged into an absolute interest.
The Succession Act defines "aliyansantana law" by section 3 (a) as meaning "the system of law applicable to persons who, if this Act had not been passed, would have been governed by the Madras Aliyasantana Act, 1949, or by, the customary aliyasantana law with respect to the matters for which provision is made in this Act.
" Section 4(1) on which reliance has been placed for contending that the Aliyasantana Law as in force prior to the Succession Act has no application provides thus : "4.
(1) Save as otherwise expressly provided in this Act. (a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions of this Act.
" Sections 8and 10 of the Succession Act make provisions for the devolution and succession of the property of a male , Hindu dying intestate,S. 15 deals with the general rules of succession in the case of female Hindus dying intestate, and section 23 makes special provision in respect of dwelling houses where a Hindu dies intestate leaving him or her both male and female heirs specified in class I of the Schedule.
Sections 7, 17 and 30 of the Act on which reliance has been placed will now be read insofar as they are relevant: "7.
(2) When a Hindu to whom the aliyasantana law would have applied if this Act had not been passed dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of a kutumba or kavaru, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the aliyasantana law.
Explanation.
For the purposes of this sub section, the interest of a Hindu in the property of a kutumba or 717 kavaru shall be deemed to be the share in the property of the kutumba or kavaru, as the case may be, that would have fallen to him or her in a partition of that property per capita had been made immediately before his or her death among all the members of the kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under the aliyasantana law, and such share shall be deemed to have been allotted to him or her absolutely. ' "17.
The provisions of sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if , (i) for sub cluses (c) and (d) of section 8, the following had been substituted, namely : " (c) x x x (ii) for clauses (a) to (e) of sub section (1) of section 15, the following had been substituted, namely (a) x x x x (b) x x x x (c) x x x x (d) x x x x (e) x x x x (iii) clause (a) to subsection (2) of section 15 had been omitted; (iv) section 23 had been omitted." "30.
Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him, in accordance with the provisions of the , or any other law for the time being in force and applicable to Hindus.
Explanation.
The interest of a male Hindu in a Mitakshara coparcenary property or the interest of a member of a forward, tavazhi, illom, kutumba or kavaru in the property of the tarwad, tavazhifi illom, kutumba or ' kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be pro perty capable of being disposed of by him or by her within the meaning of this sub section.
" The first thing to be noticed is that on the demand for partition there is a division in status, and though partition by metes and bounds may not have taken place, that family can thereafter never be considered as an undivided family, nor can the interest of a copareener be considered to be an undivided interest.
It is a well established principle in, the Hindu Law that a member of a joint Hindu family has a right to, intimate his definite and unambiguous intention to the other members of the joint family that he will separate himself from 718 family and enjoy his share in severalty.
Such an unequivocal intention communicated to the, others will amount to a division in status and on ,such division he will have a right to get a de facto division of his specific share of the joint family property, in which till then all of them had an undivided coparcenary interest, and in which none of them could claim that he had any right to any specific part thereof.
Once the decision to divide has been unequivocally expressed and clearly intimated to his co sharers, whether or not the other co sharers agree, an immediate severance of the joint status is effected arid his right to obtain and possess the share to which be is admittedly entitled be Comes specified: Girja Bai vs Sadayhiv Dhundiraj & Others.(1) Lord Westbury in Appovier vs Ramasubbier,(2) had earlier observed "If there be a conversion of the joint tenancy of an undivided family into a tenancy in common of the members of that undivided family, the undivided family becomes a divided family with reference to, the property that is the subject of that agreement, and that is a separation in interest and in right, although not immediately followed by a de facto actual division of the subject matter.
This may, at any time, be claimed by virtue of the separate right.
" This principle has been incorporated in section 36(2) (h) of the Madras .Act which, as already stated, specifies the point of time for ascertaining the share when a division in status is effected.
The term 'partition ' in sub section
(3) of section 36 therefore must be given the same meaning ,as in section 36 (2) (h) of the Madras Act.
In Mahalinga Shetty vs Jalaia Shedthi and others(3) Govinda Menon, J., as he then was, speaking for the Bench of the Madras High Court came to a similar conclusion on a consideration of sections 36(2) (h) and 36(3) of the Madras Act.
It was held in that case +.hat the phrase 'at the time of partition should be understood as 'at the time when the parties effect a severance in status ' the partition being only a disruption of status.
It does not mean the point of time when the actual division by metes and bounds takes place, which might take a long time after the division in status takes place, either by the institution of a suit or by a notice of ($aim for 'partition '.
It was pointed ,out in that case that clause (h) in sub section
(2) of section 36 was obviously inserted as a result of the decision in Karthiyayini Kunchi vs Minakshi Ammal(4) in which a Bench of that Court held that the theory of division in status by a unilateral declaration of intention is applicable to persons following the Marumakkattayam Law just as it applies to Mitakshara joint family.
Burn, J., who delivered the judgment stated that the principle is not restricted to the case of joint Hindu families following the Mtakshara or any other system of law but is one of universal application.
It is to remove any doubts about this that clause (h) has been inserted in section 36(2).
In our view also, the word partition ' in sub section
(3) of section 36 should be given the same meaning, as.in section 36(2) (h) of the Madras Act, if so on a demand for partition (1) L. R. 43 I. A. 151.
(2) (1866) It M. T. A. 75.
(3) (4) 719 a severance of status takes place and the share to which each is entitled in the, undivided properties is ascertained.
Even in the case of an aliyasantana kutumba this Court had held per Hegde and Grover, JJ.
in Padmaraja and others vs Dhanavanthi and others(1) that if the jointness of the kutumba had been disrupted, there is no question of planning any partition as there is no kutumba in existence as in the instant case before us.
Similarly, on the same parity of reasoning, when there are two kavarus, a demand for parti tion would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of section 7(2) of the Succession Act, and if he has no undivided interest in the property, his interest cannot be enlarged into an absolute estate, nor can his interest in the property devolve, upon his heirs by intestate succession.
What section 7 is dealing with is a situation similar to that dealt with in section 6, namely, that when a member of joint Hindu family dies undivided, instead of his undivided interest devolving upon the other members of the family by survivorship, it is provided that on the death of an undivided member of the joint Hindu family his share in the joint family properties shall devolve on his heirs as if there had been partition in the family.
The Explanation to section 7(2) makes this position clear.
Prior to the Succession Act neither under the customary law, nor under the Madras Act, nor under the the interest of a coparcener in an aliyasantana kutumba could have been disposed of by testamentary disposition.
But section 30 of the Succession Act made a definite change in the law, by enabling a member of an undivided aliyasantana kutumba or of a kavaru to dispose of his interest in the kutumba or kavaru properties by a will.
The learned Advocate for the appellants submits.
that merely because a person has asked for a partition and that also not by Chandayya Shetty but by the first respondent, it should not deprive him of his right to dispose of that property by a will, or deprive his legal heirs of inheriting his property by intestate succession.
This argument ignores the basic concepts of the aliyasantano law.
As pointed out earlier there is neither a kutumba, nor can Chandayya Shetty be a kavaru.
The two kavarus after the division in status, become only one kavaru, namely that of respondent 1.
Chandayya Shetty will not be 'a kavaru within the meaning of section 3(b) of the Madras Act, because under section 3(b) (ii) there being no female line, it is only the mother of Chandayya Shetty who can be a kavaru but not Chandayya Shetty.
In fact a male can never be a kavaru either under the customary law or under the Madras Act.
When the Succession Act refers to kavaru in relation to its undivided interest, it is the kavaru under the custom or the Madras Act and not a deemed kavaru for the purposes of partition.
If Chandayya Shetty is not a kavaru, there is no property of a kavaru which can be disposed of under section 30 of the Succession Act.
Even under the Explanation to that section, the life interest which Chandayya Shetty had no severance of status is not property capable of being disposed of by a will.
As we said he is no longer a kavaru and had, therefore, no interest in the property of the, kavaru.
(1) ; , 104.
92SupC/74 720 A Full Bench of the Mysore High Court in Sundara Adapa and others vs Girija and Others(1) has given a similar answer on facts analogous to the one raised before us.
In that case the first defendant who was a nissanthathi kavaru had claimed in his written statement a partition of his own share and was granted 751360th share in the preliminary decree.
By a will he left to his wife and children all his rights in the properties due to him on account of his share.
There was also likewise a santhathi kavaru, Under the Aliyasantana Act on the cessation of the first defendant 's life interest the property would devolve upon the nearest santhathi kavaru according to sub section
(5) of section 36.
But it was contended as is contended in this case.
that by virtue of Explanation to sub section (1) of section 30 of the Succession Act, the rights of the first defendant in his 75/360th share of his properties became capable of being disposed of by wi ll and, therefore, the children of the first defendant could be entitled to the share in accordance with the terms thereof.
Hegde, J., as he then was, delivering the judgment of that Court observed at pp.
238 239 ; "The object of section 30 is clear.
That section neither directly nor by necessary implication deals with the devolution of divided interest.
As mentioned earlier, its purpose is limited.
The language employed is plain and therefore no question of interpretation arises.
It is not correct to contend, as done by Sri Bhat, that if the Explanation to section 30(1) is understood in the manner the respondents want us to understand, a coparcener who dies undivided would leave a more valuable estate to his heirs than one who dies divided.
In most cases, the share taken by a nissanthathi kavaru though limited to the duration of the life of the kavaru would be larger in extent than one as provided under sec.
7 (2) of the "Act".
In the case of a share under the Aliyasanthana Act the kavaru takes his share on the basis of half per capita, half per stirpes.
Under sec.
7(2) the share is determined on per capita basis.
Quite clearly the object of bounty under section 7 (2) read with sec.
30 is the donee under the will of a deceased coparcener.
The fact that divided members also do not get corresponding benefits under the "Act" is no relevant test.
If Parliament wanted to enlarge the interest of divided male members nothing would have been easier than to enact a provision on the lines of sec.
14(1) of the "Act", provided Parliament had competence to do so.
Further, the Explanation to section 30(1) speaks of "The interest of a Male Hindu" in his "kutumba" or "kavaru" propert y. The definite article 'the ' evidently refers to the interest specified or quantified in some other provision of the "Act"; it could not refer to the unascertained interest of a coparcener in a kutumba.
Obviously "the interest" referred to is the interest quantified under section 7 of the "Act" to which reference will be made in greater detail at a later stage.
(1) T. L. R. 721 Quite clearly, on the date of his death the first defendant was not a member of his kutumba or kavaru.
As noticed earlier, he was already divided from the family.
Further, his will did not relate to his interest in the kutumba or kavaru property.
The will purported to bequeath the property obtained by him as his share as per the preliminary decree.
Therefore, the contention that interest obtained by the first defendant under the preliminary, decree stood enlarged as a result of section 30(1) of the "Act" must fail.
" The above statement of the law which meets the several contentions raised before us is in consonance with our own reading of the provision of the Madras Act and the Succession Act.
The learned Advocate for the appellants, however, has tried to distinguish this case on the ground that the effect of section 17 of the Succession Act was not considered in that case.
In our view, that question was not relevant either in that case or in this case, because section 17 of the Succession Act applies the provisions of sections 8, 10, 15 and 23 which deal with intestacy, to Persons who would have been governed by the Marumakkattayam Law or Aliyasantana Law if the Succession Act had not been passed with the modifications provided therein.
in this case also, as already stated, there is no kavaru of Chandayya Shetty and on separation he Succession Act while enlarging the right of an absolute interest did not specifically the right of the former.
In the absence had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy.
Even the argument that under section 7(2) Chandayya Shett 's life interest has been enlarged into an absolute interest is equally untenable, because a male with a life interest under the Aliyasantana Law being in the same position as a female limited owner under the Hindu Law, the latter under section 14 into provide for the enlarging of any such specific provision we can only hold that Chandayya Shetty 's interest enured till his life time only.
In the result the judgment of the High Court is sustained, and the appeal dismissed but without,costs.
3.B.W. Appeal dismissed.

summary:
Prior to the Hindu Seccession Act, 1956, the parties were governed by the Aliyasantana law.
The customary Aliyasantana law was known by two different names, namely marumakattayam and aliyasantana which literally connotes inheritance in the line of nephews ' or sisters ' sons respectively.
The basic principle underlying the joint family composition, otherwise known as kutumba or tarwad, is the matriarchal system, in which devolution is through females.
A kutumba under the customary Aliyasantana law was a family corporation; every member, male or female, born in it has equal rights in the property owned by it.
On the death of any member of the kutumba, his or her interest in the kutumba property devolved on the remaining members by survivorship.
Partition could be effected only at the instance of all the adult members.
The children of the female members alone were the coparceners in the kutumba, but not the wife and children of the male members.
The Madras Aliyasantana Act, 1949, defined and amended in certain respects the customary Aliyasantana laws relating to, inter alia, intestate succession and partition and in other respects saved the prevailing laws.
Thereafter, the Hindu Secession Act, 1956, came into operation whereby the antecedent Hindu Law ceased to have effect to the extent that it was either provided for or was inconsistent with the Act.
The first appellant and the other appellants are the widow and sons respectively of C, while the first respondent and the other respondents are C 's sister and her sons respectively.
C executed a will on January 15, 1957 bequeathing his interest in favour of the appellants.
On January 25, 1957, the respondents issued a notice to C stating that he was the manager of the undivided family, that he was a missanthathi kavaru while the respondents were santhathi kavaurs, as such there were only two kavarus and that they had decided to divide the properties between C and themselves.
They, therefore, demanded under the Madras Act a share belonging to their kavaru from out of the entire movable and immovable properties of the family.
C replied on January 24, 1957, stating that the respondents ' family was not a santhathi kavaru but a nissanthathi kavaru as the first respondent was mere than fifty years old on the date of the said notice and had no female issue.
He admitted, however, that there are only two kavarus in the family, and as both the kavarus were nissanthathi kavarus, each kavaru was entitled to a absolute share in the kutumba properties.
He also stated that he bad no objection to the claim for partition made by the respondents and was prepared to effect it provided the respondents cooperated.
C subsequently died on February 13, 1957, after the coming into force of the Succession Act.
On March 23 1957, the appellants gave a notice to the respondents claiming a separate share under C 's will.
The respondents replied to the notice on the same day denying that the appellants had any share because according to them C was entitled only to a life interest under the Aliyasantana law.
The appellants plaintitfs then filed a suit against the respondents defendants for partition, separate possession of their 7/20th share of the suit Properties and for mesne profits.
The trial court decreed the suit but the High Court dismissed.
In appeal by special leave to this Court, the questions that arose for consideration were : (i) whether the rights of the parties, are to be determined in accordance with the Aliyasantana law or under the Succession Act; (ii) what interest C had, 708 under the Madras Act, in the joint family properties on the date of his death; (iii) whether a partition had been effected; (iv) whether C 's will is effective in respect of his share; (v) whether he had a life interest in the properties; and (vi) whether, under the Succession Act.
that interest had been enlarged into an absolute interest which could be bequeathed by a will.
Dismissing the appeal, HELD : (i) From the definitions of 'kavaru ' [section 3 (b) (i) & (ii) ], 'Kutumba ' section 3(c), 'Nissanthathi kavaru ' section 3(f) and 'Santhathi Kavaru section 3(h), under the Madras Act, it is apparent that the, basic concept of inheritance through a female has been maintained.
The presence of even one female in the kavaru will have the effect of continuing the kavaru, while the absence of a female would amount to the absence of progeny.
[712D] (ii) Under the provisions of Sections 35 and 36 of the Madras Act, any kavaru represented by the majority of its major members can claim its share of all the properties of the kutumba over which the kutumba has power of disposal.
It may thereafter take its share and separate from the kutumba provided that where a kavaru consists of only two persons, such a claim can be made by either of them.
But no kavaru can make such a claim during the life time of any common ancestress who is common to such kavaru and to any other kavaru or kavarus of the kutumba who has not completed 50 years unless she has signified her consent in writing or 2/3 of the major members of the kavaru have joined in making the claim for partition.
The common ancestress can however on her own volition claim a partition.
The share obtained by the kavaru on partition is with all the incidents of a kavaru property which is divisible into certain proportion for a period of 15 years from the commencement of that Act, and thereafter, is divisible per stirpes and each kavaru gets a share on the basis.
The same position applies to every kavaru possessing separate property as if it were a kutumba.
However, u/s 36(3), if at the time of the partition any kavaru taking a share is a nissanthathi kavaru it would have only a life interest in the property allotted to it, if the kutumba from which it separated has at least one family member who has not completed the age of 50 years or where the kutumba broke up into a number of kavarus at partition, if at least one such kavaru is the santhathi kavaru.
But if there is no such female member or santhathi kavaru, the nissanthathi kavaru would have an absolute interest in the properties allotted to it.
The properties allotted to a nissanthithi kavaru at a partition and in which it had only a life interest at the time of the death of the last of its members, devolves upon the kutumba or where the kutumba is broken up at the same or at a sub sequent partition into a number of kavarus, upon the nearest santhathi kavaru or kavarus.
[713H] Gupte, Hindu Law of Succession, 2nd edition, at page 484, referred to.
(iii) The provisions of the Madras Act, particularly section 36(2)(h) with its explanation without doubt indicates the time when a share of a kavaru is ascertained on a partition in the family and whether the property is divided by metes and bounds or not the share in the property has to be determined as on the date when the claim is made.
In the present case, the claim was made on January 22, 1957, and therefore, the share of the parties has to be determined as on that date even though the physical partition of the properties by metes and bounds may take place some time later.
[715B] (iv) Under the provisions of the Succession Act, on the demand for partition, there is a division in status, and though partition by metes and bounds may not have taken place, that family can thereafter never be considered as an undivided family nor can the interest of a coparcener be considered to be an undivided interest.
It is a well established principle in the Hindu Law that a member of a joint Hindu family has a right to intimate his definite and unambiguous intention to the other members of the joint family that he will separate himself from the family and enjoy his share in severally.
Such an unequivocal intention communicated to the other will amount, to a division in status and on such division, he will have a right to get the division of his specific share of the joint family property in which till then all of them had an undivided coparcenary interest, and in which none of them could claim that he had any right 709 to any specific part thereof.
Once the decision to divide has been unequivocally expressed and clearly intimated to his co sharers, whether or not the other co sharers agree, an immediate severance of the joint status is effected and his right to obtain and possess the share to which he is admittedly entitled becomes specified.
This principle enunciated in Girja Bai vs Sadashiv Dhundiraj and others L.R. 43 I.A. 151 and Appovier vs Ramasubbier [1866] 11 M.I.A. 75 has been enacted in section 36(2) (h) of the Madras Act which specifies the point of time for ascertaining the share when a division in status is effected.
The term "partition" in sub section (3) of section 36 therefore, must be given the same meaning as in Sec.
36(2)(h) of the Madras Act.
If so on a demand for partition, a severance of status takes place and the share to which each is entitled in the undivided properties is ascertained.
In the case of an Aliyasantana kutumba, this Court, in Panduraja and others vs Dhanawanti and others, held that if the jointness of the kutumba had been disrupted, there is no question on claiming any partition as there is no kutumba in existence as in the present case.
Similarly, on the same parity of reasoning, when there are two kavarus, demand for partition would disrupt them within the meaning of section 7(2) of the Succession Act.
If he had no undivided interest in the property, his interest cannot be enlarged into an absolute estate nor can his interest devolve upon his heirs by intestate succession.
Prior to the Succession Act, neither under the customary law nor under the Madras Act, nor under the Indian Succession Act, the interest of a coparcener in an Aliyanasantana kutumba could have been disposed of by testamentary disposition.
But section 30 of the Succession Act made a definite change in the law by enabling a member of an undivided Aliyanasanta kutumba or of a kavaru to dispose of his interest in the kutumba or kavaru properties by a will.
[717H] Karthiyayini Kunehi vs Minakshi Ammal [1935] M.L.F. 114 and Mahalinga Sherty vs Jataja Shedthi and others [1956] 2 M.L.F. 446, approved.
Padmaraja and others vs Dhanavanthi and Ors.
[1972] 2 S.C.C. 100, 104, applied.
Girja Bai vs Sadashiv Dhundiraj and others L.R. 43 I.A. 151 and Appovier vs Ramasubbier [1866] 11 M.I.A. 75, referred to.
(v) In the present case, there is neither a kutumba nor can C be a kavaru.
The two kavarus after the division in status, became only one kavaru, viz. that of respondent No. 1 (C 's sister).
C will not be a kavaru within the meaning of section 3(b) of the Madras Act because u/s 3(b)(ii), there being no female line, it is only C 's mother who can be a kavaru but not C.
In fact, a male can never be a kavaru either under the customary law or under the Madras Act.
When Sec.
7(2) of the Succession Act refers to kavaru in relation to its "undivided interest ', it is the kavaru under the customary law or the Madras Act and not a deemed kavaru for the purpose of partition.
If C is not a kavaru, there is no property of a kavaru, which can be disposed of under sec.
30 of the Succession Act.
Even under the explanation to that section, the life interest which C had on severance of status is not property capable of being disposed of by a will nor could it devolve by survivorship.
He is no longer a kavaru and had, therefore, no interest in the property of the kavaru.
C 's live interest is also not enlarged u/s 7(2) of the Succession Act into an absolute interest, because a male with a life interest under the Aliyasantana law being in the same position as a female limited owner under the Hindu law, the Succession Act while enlarging the right of the latter under sec.
14 into an absolute interest did not specifically provide for the enalrging of the right of the former.
In the absence of any such specific provisions, it must be held that C 's interest enured till his life time only.
[721] Dundara Adapa and others vs Girija & Ors.
I.L.R. , applied.


judgement:
iminal Appeal No. 22 of 1973.
Appeal by special leave from the judgment and order dated the 13th July 1972 of the High Court of Himachal Pradesh at Simla in Criminal Appeal No. 31 of 1970 and Murder Reference No. 21 of 1970.
72 4 Yogeshwar Prasa , for the appellant.
H. R. Khanna and M. N. Shroff, for the respondent.
The Judgment of the, Court was delivered by KHANNA, J. Kali Ram (40) was tried in the court of Sessions Judge Simla & Sirmur Districts for an offence under section 302 Indian Penal Code for causing the death of Dhianu (60) and the latter 's daughter Nanti (40).
Charge was also framed against the accused under section 392 read with section 397 Indian Penal Code for having at the time of the occurrence committed robbery.
The learned Sessions Judge convicted the accused under section 302 Indian Penal Code and sentenced him to death.
On appeal and reference, the High Court of Himachal Pradesh affirmed the conviction and the sentence of death.
The accused thereafter came up to this Court in appeal by special leave.
The prosecution case is that Dhianu deceased was suffering from leprosy.
This disease had resulted in partially destroying the hands and feet of Dhianu.
For about a couple of months before the present occurrence.
Nanti, daughter of Dhianu, had been staying with him in his house in village Amrahi.
There was no other house near the house of Dhianu.
Dhianu did business of money lending on the security of ornaments.
The accused, it is stated, is a previous convict having been convicted in cases under sections 380, 454 and 457 Indian Penal Code in the years, 1955, 1957, 1960, 1962 and 1963.
He was sentenced to undergo various terms of imprisonment in those cases.
The last sentence of imprisonment undergone by the accused was from December 17, 1963 to November 7, 1967 on which day he was released from Central Jail Nahan.
On August 1, 1968 the police presented a challan against the accused under section 1 10 of the Code of Criminal Procedure in the court of District Magistrate Naban.
Notice under section 112 of the Code of Criminal Procedure was then issued to the.
accused.
It was served upon him for September 16.
, 1968.
As the.
notice was not received back, the District Magistrate adjourned the case to October 16, 1968 and thereafter to November 6, 1968.
On 13 Asuj, which corresponds to September 28, 1968, it is stated, the accused went at evening time to the shop of Parma Nand (PW 14) in village Paliara, at a distance of three or four miles from the house of Dhianu.
The accused spent the night with Parma Nand.
On the morning of 14 Asuj, corresponding to September 29, 1968, the accused gave Rs. 18 to Parma Nand for purchase of liquor and fish.
Fish was thereafter purchased by Parma Nand.
The accused and Parma Nand took liquor and fish on the evening of 14 Asuj.
The accused then told Parma Nand that he had to meet Dhianu of village Amralu and that Parma Nand should serve the evening meals to him.
After taking his meals, the accused left for the house of Dhianu deceased.
The way to village Amrahi of Dhianu was shown to the, 725 accused by, Parma Nand.
At about mid night hour on that night the accused shouted to Parma Nand from outside.
the shop.
Parma Nand asked the accused to come in but the latter replied that he had some work.
The accused thereafter went away.
Dhianu deceased had two nephews, Hira Singh (PW 1) and Mehru (PW 10), who lived in village Lohara at a distance of half a mile from, the house of Dhianu.
On October 1, 1968 Mehru went to a Gharat (flour ginding place).
On the way back Mehru did not see the cattle of Dhianu grazing in the field.
On reaching home, Mehru told his brother Hira Singh that he had not seen Dhianu 's cattle.
Hira Singh and Mehru then went to the house of Dhianu and found Dhianu and Nanti lying murdered in the courtyard of their house.
The dead bodies were covered with cloth.
On removing the cloth, Hira Singh and Mehru noticed injuries on the heads of Dhianu and Nanti.
The bodies were in a state of decomposition.
The door of the residential room was open and the goods were lying scattered.
Hira Singh informed PW 31 Udey Singh, Pradhan of the Gram Panchyat about what he had seen.
On the advice of the Pradhan, Hira Singh went with village chowkidar to police station Renuka, at a distance of six miles from the place of occurrence, and lodged there report PA at 1 a.m. on October 2, 1968.
On the following morning ASI Mohd. Sardar (PW 49) accompanied by Hira Singh arrived at the place of occurrence.
Sub Inspector Attar Singh, who was away from the police station at the time the report was,lodged at the police station, on learning of the occurrence, also reached the place of occurrence at about 9 a.m. on October 2, 1968.
Sub Inspector Attar Singh prepared inquest reports PB and PC relating to the dead bodies of Dhianu and Nanti.
The dead bodies were thereafter sent to Civil Hospital Renuka where post mortem examination was performed by Dr. N. C. Jain (PW 43) on October 3, 1968.
The case of the prosecution further is that on November 22, 1968 at 9.15 a.m. Kedar Nath (PW 2), who was in those days a clerk in Government High School, Tikri Dasakna, went to the shop of one Mulak Raj for buying some goods.
Near that shop Kedar Nath saw the accused, who was having a gun with him.
The accused called Kedar Nath and asked him to write, a letter on his behalf to the Deputy Commissioner.
Mulak Raj then told Kedar Nath that the accused was a dangerous man and that Kedar Nath should write the letter as desired by the accused.
Kedar Nath then told the accused 'that he had to go to the school and that he would write the letter after taking the permission of the Head Master.
The accused thereupon remarked that the Head Master was nobody and that the accused would shoot him.
Kedar Nath was at that time carrying a notebook.
At the dictation of the accused, Kedar Nath wrote a 22 page letter on behalf of the accused addressed to the Deputy Commissioner Nahan.
In the course of that letter, the accused referred to the previous cases in which he had been convicted.
as well as to the proceedings under section 110 of the Code of Criminal Procedure pending against him.
According to the accused, he had been directed by police Sub Inspector to report twice at, the police, station.
The accused, however, told the Sub Inspector that it was difficult for him to do so.
The 726 accused tried to meet the Deputy Commissioner at Nahan and the Chief Minister of Himachal Pradesh at Simla but could not do so.
The accused felt that as he had no money and no one would be prepared to stand surety for him, he would have to go to jail.
It was also mentioned by the accused that he had murdered Dhianu and Nanti because the accused had been told that Dhianu had Rs. 30,000 to 40,000 with him.
After getting letter PD written from Kedar Nath, the accused appended his signature to it.
The accused further told Kedr Nath not to disclose die matter to any one and that otherwise he would kill him (Kedar Nath).
The accused thereafter went to the post office and sent the letter by registered post to the Deputy Commissioner Nahan.
The said letter was received in the office of the Deputy Commissioner Nahan on November 27, 1968.
No action was taken on that letter.
On November 28, 1968, it is alleged, the accused met Sahi Ram (PW 46).
Sahi Ram is the son of the Lambardar of village Shalahan.
Sahi Ram told the accused not to commit thefts.
The accused then told Sabi Ram that after being released from jail, he had been involved in a case under section 1 10 of the Code of Criminal Procedure.
As the accused felt that no one would stand surety for him and as he would have again to, go to jail for two or three years, he decided to commit such an offence as would bring money for his children.
The accused added that he, bad learnt that Dhianu was a rich man and that the accused had committed the murder of Dhianu and his daughter.
According further to the confession made by the accused to Sabi Ram, the accused was served meals by Nanti and Dhianu when he went to their house.
After Dhianu and Nanti had gone to sleep, the accused got up from his bed and thought of committing theft of the goods.
Feeling then began to weigh with the accused that Dhianu, who was suffering from leprosy, would die of hunger.
This circumstance induced the accused to kill Dhianu.
Accordingly, the accused gave blows to Dhianu with a dhangra.
Nanti then got up and, on seeing the injuries of Dhianu, she became unconscious.
The accused then went inside the house of Dhianu and picked up a sword.
With that sword, he gave further blows an the head and neck of Dhianu.
He, also gave blows with the sword to Nanti.
It was further stated by the accused that be found Rs. 180 in cash and silver ware weighing about two or three kilograms.
Sahi Ram then wrote letter PEEE dated November 28, 1968 to the Station House Officer of police station Renuka wherein Sahi Ram apprised the Station House Officer of the extra judicial confession made by accused to Sabi Ram, as mentioned above.
Letter PEEE was received at the police station on December 2, 1968.
Sub Inspector Budh Ram (PW 50) then recorded the statement of Sabi Ram.
On December 20, 1968 Sub Inspector Attar Singh on receipt of information went to village Minus.
On the night between December 20 21, 1968 the Sub Inspector surrounded a hotel wherein the accused was stated to be present in village Minus.
The, accused was arrested early on the morning of December 21, 1968 from that hotel.
A gun dhangra P9, currency notes of the value of Rs. 684 and some other articles were taken into possession from the accused.
727 The case, of the prosecution further is that silver ornaments and other articles belonging to Dhianu and Nanti deceased, as well as some ornaments which had been left with Dhianu as security: for the money lent by him were pawned by the accused to, various persons after this occurrence.
Those ornaments and articles were after the arrest of the accused recovered at the instance of the accused from the persons with whom they had been pawned.
After the recovery of the ornaments, Shri Malhotra magistrate on being moved by the police, mixed the recovered ornaments with sonic other ornaments.
Salkoo, husband of Nanti deceased, and one Zalmu identified the recovered ornaments as those which were with the two deceased persons.
The accused in his statement under section 342 of the Code of Criminal Procedure denied the various allegations made against him.
It was, denied by the accused that he had stayed with Parma Nand PW at his shop and that he had gone from that shop towards the house of Dbianu.
It was also denied by the accused that he had got letter PD written from Kedar Nath PW or that he had sent the same to the Deputy Commissioner.
The accused further denied having made any confession to Sahi Ram.
It was also denied by the accused that any ornaments had been recovered at his instance.
The prosecution allegation about the recovery of dhangra from him was likewise denied by the, accused.
According to the accused, Sahi Ram PW and two others were, engaged with him in doing the business of opium smuggling.
Sahi Ram and one other person misappropriated goods worth Rs. 5000 whereupon there was a dispute between the accused and Sahi Ram.
The accused added that he had been falsely implicated in this case at the instance of Sahi Ram.
The trial court held that document PD wherein the.
accused had made a confession about his having murdered Dhianu and Nanti had been voluntarily got written by the accused.
it was further held that the accused had made an oral confession about his guilt to Sahi Ram PW.
The prosecution allegation that the ornaments belonging to the deceased persons were found in possession of the accused and had been pawned by, him was also accepted by the trial court.
It was also held by the trial court that the accused had stayed at the shop of Parma Nand in village Paliara on the day preceding the occurrence and that he had gone from that shop towards the house of the deceased.
The evidence of Parma Nand that the accused had shouted to him from outside the shop at mid night hour and that he had thereafter gone away was not accepted by the trial court.
On appeal and reference, the High Court upheld the finding of the trial court with regard to the confession of the accused contained in letter PD.
The High Court also agreed with the trial court that the accused had made confession to Sahi Ram as contained in Sahi Ram 's letter PEEE.
The, High Court further upheld the findings of the trial court regarding the stay of the accused with Parma Nand before the occurrence.
The High Court agreed with the trial court that the evidence of Parma Nand regarding the shout of the accused at mid night hour from outside the shop could not be accepted.
The 728 High Court, however, disagreed with the trial court regarding its findings of the possession of silver ornaments, belonging to the two deceased persons by the accused after the occurrence.
As regards the recovery of dhangra, the High Court held that the same was not shown to have been recovered from the possession of the accused.
In appeal before us, Mr. Yogeshwar Prasad has assailed the findings of the High Court on the basis of which the High Court arrived at the conclusion of the, guilt of the accused.
It has been urged that the evidence adduced in support of those findings is innately unconvincing and it is not safe to base the conviction of the accused on a capital charge upon such evidence.
As against that, Mr. Khanna on behalf of the State has supported the findings of the High Court and has urged that no case has been made for interference with those findings.
It cannot be disputed that Dhianu and Nanti were the victims of a murderous assault.
Dr. Jain, who performed the post mortem examination on the two dead bodies, found the following two injuries on the body of Dhianu: "Injury (1).
A sharp wound injury over the left side of the skull.
Injury over the scalp is running from outer angle of the left eye to the middle of the, forehead, reaching I" above the hair line.
The whole socket of the left eye is ruptured, frontal bone and part of the parietal bone are completely fractured around the course of the wound.
Wound is 5 1/2 broad and " above the left eye.
Scalp and skull is completely separated from the line of wound due to decomposition.
Whole cranial cavity is seen through the wound.
Whole of brain matter and meanings have sloughed out.
Eye ball is also eaten up.
(2) A sharp wound over the forehead running from the bridge of the nose going towards the right frontal prominence.
Wound is 4 1/2" long tapering at both the ends and I" wide in the centre of the wound.
Margins are even.
Bones around the Wound are completely fractured.
Maggots from the wound coming and going out.
The rest of the parts of the body were normal except that they were in a state as described above.
" The following three injuries were found on the body of Nanti: "A sharp wound over the scalp, starting from forehead on right side 1/4 from upper margin of middle of right eye ,to, the right parietal bone on the same side Wound is ending near the middle of parietal bone.
Wound is 7 1/2" long and tapering at both the ends.
Wound is I" apart at the prominence of the right frontal bone.
Skull underneath the wound is completely fractured.
Due to this, injury, whole in= bones of right eye and bones of the bridge of nose is, completely fractured.
Pieces of bones are clearly seen in the hollow of the skull.
And one can nicely peep into 729 the hollow of skull by making wound apart by fingers.
Margins of the wound are even.
(2) A sharp cut wound of 8" size, starting from 1 1/2" above the middle of left eye having a semilunar shape, reaching to the most prominent part of the, occipital bone.
Wound is tapering at both the ends, margins are even.
Scalp and skull is completely apart.
Skull during the course of wound is completely fractured and depressed at the places.
(3) Neck injury.
A deep sharp wound starting from the right angle of the mandible to the middle of the neck and reaching to I" short of laryngeal prominence, wound is 2 1/2" deep at the angle of the mandible and tapering towards the middle of neck.
All underlying structures, nerves, arteries, veins are cut, laryngeal prominence is also fractured Wound is 3" long and 1/2" broad." According to Dr. Jain, the injuries on the bodies of Dhianu and Nanti had been caused with a heavy sharp weapon.
The injuries were sufficient in the ordinary course of nature to cause death.
The case of the prosecution is that the injuries to Dhianu and Nanti deceased were caused by the accused.
The accused has, however, denied this allegation.
In order to bring the charge home to, the accused, the prosecution led evidence on a number of points.
The High Court accepted the prosecution allegation in this respect and.
based its conclusion upon the following three pieces of evidence : (1) The evidence of Parma Nand that the accused had stayed with him on September 29, 1968 and had on the evening of that day proceeded towards the house of Dhianu deceased after he had been shown the way by Parma Nand.
(2) The confession of the accused contained in letter PD.
(3) The extra judicial confession made by the accused to Sahi Ram incorported in letter PEEE.
We may first deal with the deposition of Parma Nand (PW 14).
The deposition consists of three parts.
The first part relates to the stay of the accused with Parma Nand at his shop in village Paliara on September 28 and 29, 1968 when some fish and liquor are stated to have been taken by the accused and Parma Nand.
This part of the deposition relates to an innocuous circumstance and hardly connects the accused with the crime.
The second part of the deposition is to the effect that the accused on the evening of September 29, 1968 told Parma Nand that he had to go to the house of Dhianu and that Parma Nand showed at the instance of the accused the way which leads to the house of Dhianu at a distance of three or four miles from the shop of Parma Nand.
We find it difficult to accept this part of the deposition of Parma Nand.
Parma Nand admits that he came to know of the murder of Dhianu and Nanti about four days after those persons were found to have been murdered.
It would, therefore, follow that Parma Nand came to know ' of 730 the murder of Dhianu and Nanti on or about October 4, 1968.
Had the accused left for the house of Dhianu deceased on the evening of September 29, and had Parma Nand PW come to know that Dhianu and Nanti were murdered in their house, this fact must have aroused the suspicion of Parma Nand regarding the complicity of the accused.
Parma Nand, however, kept quiet in the matter and did not talk of it.
The statement of Parma Nand was recorded by the police on December 11, 1968.
If a witness professes to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness keeps silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstance, in the absence of any cogent reason, is bound to lose most of its value.
No cogent reason has been shown to us as to why Parma Nand kept quiet for over two months after coming to know of the murder of Dhianu and Nanti about the fact that the accused had left for the, house of the deceased shortly before the murder.
We are, therefore, not prepared to place any reliance upon the second part of the deposition of Parma Nand.
The third part of the deposition of Parma Nand PW pertains to the shout of the accused from outside the shop of Parma Nand at about mid night hour on the night of occurrence.
This part of the deposition has not been accepted by the trial court and the High Court and we find no valid reason to take a different view.
Coming to the confession of the accused, which is alleged to be incorporated in letter PD, we find that the question which arises for consideration is whether the letter sent by the accused to the Deputy Commissioner contained confession about his having murdered Dhianu and Nanti.
The fact that a registered letter purporting to be from the accused was received in the office of the Deputy Commissioner cannot be disputed.
The controversy before us has, however, ranged on the point whether the letter contained any confession regarding the murder of Dhianu and Nanti by the accused or whether that portion of the letter has been subsequently inserted.
In this respect we find that letter PD is on loose leaves.
It is only the first leaf of the letter which bears the stamp of the office of the Deputy Commissioner, while the remaining leaves have not been stamped.
In the circumstances, it was not difficult to replace or add some other leaves.
According to PW Sundar Singh, who was working as postmaster at Kurag during the relevant days, the letter addressed by the accused to the Deputy Commissioner consisted of 18 or 19 pages.
Letter PD produced at the trial consists of 22 pages.
PW 21 Mehta, Superintendent of Deputy Commissioner 's office, has deposed that on receipt of letter PD, he read that letter.
An entry was then made in the diary that letter PD related to the subject of jail dispute.
Had the letter addressed by the accused to the Deputy Commissioner contained confession about a double murder committed by the accused, it is difficult to believe that the Superintendent of Deputy Commissioner 's office would have after reading the letter kept quiet and not brought it to the notice of the authorities concerned.
The fact that no action was taken on the letter till it was taken into possession by the police on January 1, 731 1969 lends support to the contention that letter PD did not contain the confession.
The portion of the letter relating to the confession is also somewhat incongruous with the entire tenor and context 'of the letter.
The letter appears to have been sent by the accused to the Deputy Commissioner to show that after his release from jail in 1967, the accused had turned a new leaf and he wanted the Deputy Com missioner to give him help and relief so that the accused might rehabilitate himself and support his family.
It is not likely that a person asking for relief would make a confession that after his release from jail, he has committed two murders.
The circumstances in which the accused is stated to have got letter PD written from Kedar Nath (PW 2) are also rather peculiar.
According to Kedar Nath, the accused compelled Kedar Nath at the point of gun to write that letter.
The accused also told Kedar Nath not to disclose the contents of the letter to any one.
It is not clear as to why the accused should ask Kedar Nath to keep the matter secret when he was himself, according to letter PD, making a confession about his having committed the crime of two murders.
Apart from that, if Kedar Nath came to know on November 22, 1968 that the accused had committed the murder of Dhianu and Nanti, his failure to make any statement IQ the police till December 24, 1968 regarding the confession made by the accused to the witness would deprive his evidence of much of its value.
We, therefore, find it difficult to act upon the confession incorporated in letter PD.
The last piece of evidence upon which the High Court has maintained the conviction of the accused consists of the confession of the accused contained in letter PEEE sent by Sahi Ram (PW 4) to the Station House Officer Renuka.
The first question which arises for consideration in respect of letter PEEE is whether it is admissible in evidence.
Section 162 of the Code of Criminal Procedure reads as, under : 162.
(1) No statement made by any person to a police officer in the course of.
an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence, under inve stigation it the time when such statement was made : provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Section 145 of the and when any part of such statement is 732 so used, any part thereof may also be, used in the re examination of such witness, but for the purpose only of explaining any matter referred to in his cross examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of Section 32, clause (1) of the , or to affect the provisions of Section 27 of that Act." Bare perusal of the provision reproduced above makes it plain that the statement made by any person to a police officer in the course of an investigation cannot be used for any purpose except for the purpose of contradicting a witness, as mentioned in the proviso to sub section (1), or for the purposes mentioned in sub section (2) with which we are not concerned in the present case.
The prohibition contained in the section relates to all statements made during the course of an investigation.
Letter PEEE which was addressed by Sahi Ram to Station House Officer was in the nature of narration of what, according to Sahi Ram, he had been told by the accused.
Such a letter, in our opinion, would constitute statement for the purpose of section 162 of the Code of Criminal Procedure.
The prohibition relating to the use of a statement made to a police officer during the course of an investigation cannot be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communication addressed by the person concerned to the police officer.
If a statement made by a person to a police officer in the course of an investigation is inadmissible, except for the purposes mentioned in section 162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation.
It is not permissible to circumvent the prohibition contained in section 162 by the investigating officer obtain a written statement of a person instead of the investigating officer himself recording that statement.
It has been argued by Mr. Khanna on behalf of the State that at the time letter PEEE was addressed by Sahi Ram to the police, no investigation had been made by the police against the accused and, as such, the aforesaid letter cannot be held to be inadmissible.
This contention, in our opinion, is wholly devoid of force.
The restriction placed by section 162 on the use of statement made during the course ,of investigation is in general terms.
There is nothing in the section to show that the investigation must relate to any particular accused before a statement to the police pertaining to that accused can be held to be inadmissible.
Reference has been made by Mr. Khanna to the case of Sita Ram vs State of Uttar Pradesh( ') wherein it was held by majority that a letter addressed by the accused to a sub inspector of police containing his confession was not inadmissible under section 25 of the .
There is nothing in the aforesaid judgment to show that the letter in question had been written during the course of the (1) [19661 Supp. section C. R. 265.
733 investigation of the case.
As such, this Court in that cast did not consider the question as to whether the letter in question wag inadmissible under section 162 of the Code of Criminal Procedure.
As such, the State cannot derive much help from that authority.
We would, therefore, hold that letter PEEE is inadmissible in evidence.
Although letter PEEE has been held by us to be inadmissible we would still have to deal with the oral deposition of Sahi Ram that the, accused had made a confession to him on November 28, 1968.
The version of the accused in this respect is that Sahi Ram is inimical to him as he had a dispute with him because of some misappropriation committed by Sahi Ram in connection with the smuggling of opium.
According to Sahi Ram, he happened to meet the accused on November 28, 1968 when the accused made a confession to him about his having committed the murder of Dhianu and Nanti.
The story about the gratuitous confession made by the accused to Sahi Ram, in our opinion, hardly inspires confidence.
It is not the case of the prosecution that the police was after the accused and that the accused in that connection went to Sahi Ram to seek his help and made a confession to him.
Sahi Ram is the son of a village lambardar.
It has been argued on behalf of the accused appellant that the police, with a view to see that the crime relating to the murder of Dhianu and Nanti might not remain untraced, utilised the services of Sahi Rain for bringing in the evidence regarding the extra judicial confession of the accused.
Looking to all the circumstances we find this contention to be not devoid of all force.
Mr. Khanna submits that both the trial court and the High Court have accepted the evidence of Sahi Ram and we should not interfere with the concurrent finding in this respect.
We find it difficult to accede to this submission because we find that both the trial court as well as the High Court were influenced by the fact that exhibit PEEE was admissible in evidence.
As letter PEEE has been held by us to be not admissible and as we find that the statement of Sahi Ram about the extra judicial confession is otherwise also lacking in credence, there should not arise any difficulty in this Court disaggreeing with the above finding of the trial court and the High Court.
Mr. Khanna on behalf of the State has also tried to assail the finding of the High Court regarding the possession of silver ornaments of the two deceased persons by the accused.
In our opinion, the finding of the High Court in this respect is based upon the appraisement of the evidence on record and there is no valid ground to disturb it.
Observations in a recent decision of this Court, Shivaji Sahabrao Bobade & Anr.
vs State of Maharashtra( ') to which reference has been made during arguments were not intended to make a departure from the rule of the presumption of innocence of the accused and his entitlement to the benefit of reasonable doubt in criminal cases.
One of the cardinal principles which has always to be kept in view in our system (1) Cr. App.
Ho.26 of 1970 decided on August 27, 1973 734 of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged.
The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused.
There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn.
Once those facts are shown by the prosecution to exist, the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption.
The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused.
If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.
Leaving aside the cases of statutory presumptions, the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed.
The court may, of course, presume, as mentioned in section 114 of the , the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business.
in their relation to the facts of the particular case.
The illustrations mentioned in that section, though taken from different spheres of human activity, are not exhaustive.
They are based upon human experience and have to be applied in the context of the facts of each case.
The illustrations are merely examples of circumstances in which certain presumptions may be made.
Other presumptions of a similar kind in similar circumstances can be made under the provisions of the section itself Whether or not a presumption can be drawn under the section in a particular case depends ultimately upon the facts and circumstances of each case.
No hard and fast rule can be laid down.
Human behaviour is so complex that room must be left for play in the joints.
It is not possible to formulate a series of exact propositions and confine human behaviour within straitjackets.
The raw material here is far too complex to be susceptible of precise and exact propositions for exactness here is a fake.
Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence.
Rule has accordingly been laid down that unless the evidence adduced in the case is consistent only with the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused.
It is also an accepted rule that in case the 73 5 court entertains reasonable doubt regarding the, guilt of the accused, the accused must have the benefit of that doubt.
Of course, the doubt regarding the guilt of the accused should be reasonable : it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences.
The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations.
As mentioned by us recently in the case of State of Punjab vs Jagir Singh,( ') a criminal trial is not like a fairy tale wherein one is free to give flight to one 's imagination and phantasy.
It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the offence with which he is charged.
Crime is an event in real life and is the product of interplay of different human emotions.
In arriv ing at the conclusion about the guilt of the accused charged with the commission of a crime, the, court has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses.
Every case in the final analysis would have to depend upon its own facts.
Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.
It needs all the same to be re emphasised that if a reasonable doubt arises regarding the guilt of the accused, the benefit of that cannot be withheld from the accused.
The courts would not be justified in withholding that benefit because the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty.
The guilt of the accused has to be adjudged not by the fact that a vast number of people believe him to be guilty but whether his guilt has been established by the evidence brought on record.
Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arraigned as accused.
Reference is sometimes made to the clash of public interest and that of the individual accused.
The conflict in this respect, in our opinion, is more apparent than real.
As observed on page 3 of the book entitled "The Accused" by J.A. Coutts 1966 Edition, "When once it is realised, however, that the public interest is limited to the conviction, not of the guilty, but of those proved guilty, so that the function of the prosecutor is limited to securing the conviction only of those who can legitimately be proved guilty, the clash of interest is seen to operate only within a very narrow limit, namely, where the evidence is such that the guilt of the accused should be established.
In the case of an accused who is innocent, or whose guilt cannot be proved.
the public interest and the interest of the accused alike require an acquittal.
" It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person.
The consequences of the conviction of an innocent person are far more (1) Cr.
7 of 1972 decided on August 6, 1973 7 3 6 serious and its reverberations cannot but be felt in a civilized society.
Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo the mischief for the wrong resulting from the unmerited conviction is irretrievable.
To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expidation.
Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled.
All this highlights the importance of ensuring.
as far as possible, that there should be no wrongful conviction of an innocent person.
Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice.
Such a risk can be minimised but not ruled out altogether.
It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of "The Proof of Guilt" by Glanville Williams, Second Edition: "I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view.
For it is obvious that if our ratio is extended indefinitely, there comes a point when the whole system of justice has broken down and society is in a state of chaos.
" The fact that there has to be clear evidence of the guilt of the accused and that in the absence of that it is not possible to record a finding of his guilt was stressed by this Court in the case of Shivaji Sahabrao Bobade & Anr.
(supra) as is clear from the following observations : "Certainly it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distinction between 'may be ' and 'must be ' is long and divides vague conjectures from sure considerations".
As a result of the above, we accept the appeal, set aside the judgments of the. trial court and the High Court and acquit the accused.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary:
One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged.
The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused.
There are certain cases in which statutory presumptions arise regarding the guilt of the accused but the burden even in those cases is upon the, prosecution to prove the existence of facts which have to be present before the presumption can be drawn.
Once those facts are shown by the prosecution to exist the court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption.
The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused.
If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.
[733 H; 734 C] Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted.
This principle has a special relevance in cases where the guilt of the accused is sought to be established by circumstantial evidence.
Rule ha, .
accordingly been laid down that unless the evidence adduced in the case is consistent only with, the hypothesis of the guilt of the accused and is inconsistent with that of his innocence, the court should refrain from recording a finding of guilt of the accused.
It is also an accepted rule that in case the court entertains reasonable doubt regarding the guilt of the accused, the accused must have the benefit of doubt.
Of course, the doubt regarding.the guilt of the accused should be reasonable, it is not the doubt of a mind which is either so vacillating that it is incapable of reaching a firm conclusion or so timid that it is hesitant and afraid to take things to their natural consequences.
The rule regarding the benefit of doubt also does not warrant acquittal of the accused by resort to surmises, conjectures or fanciful considerations.
As mentioned by this Court in the case or Slate of Punjab vs Jagir Singh, (Crl. A. No. 7 of 1972 d/ August 6, 1973) a criminal trial is not liked a fairy tale wherein one is free to give flight to one ' In arriving at the conclusion about the guilt of the imagination and phantasy.
accused charged with the evidence by the yardstick of witnesses.
Every case own facts.
Although the.
to the accused the courts commission of a crime, the court has to judge the of probabilities, its intrinsic worth and the animu, in the final analysis would have to depend upon it benefit of every reasonable doubt sh uld be given should not at the same time reject evidence which is ex facie trustworthy or grounds which are fanciful or in the nature of conjec [734 G H; 735A D] It needs all the sameto be re emphasised that if a reasonable doubt arise regarding the guilt of theaccused, the benefit of that cannot be withheld from the accused.
The courts would not be Justified in withholding the benefit be cause the acquittal might have an impact upon the law and order situation or create adverse reaction in society or amongst those members of the society who believe the accused to be guilty.
The guilt of the accused has to be 723 adjudged not by the fact that a vast number of people believe, him to be guilty but whether his guilt has been established by the evidence brought on record.
Indeed, the courts have hardly any other yardstick or material to adjudge the guilt of the person arranged as accused.
It is no doubt true that wrongful acquittals are undesirable and shake the confidence of the people in the judicial system, much worse, however, is the wrongful conviction of an innocent person.
The consequence of the conviction of an innocent person are far more serious and its reverberations cannot but be felt in a civilised society.
[735D F; H] Shivaji Sahabrao Bobade & anr.
vs State of Maharashtra, Cr. A. No. 26 of 1970 dated 27 8 73, referred to.
The appellant was convicted under section 302 Indian Penal Code and sentenced to death.
The High Court maintained the conviction and sentence.
The High Court relied on three pieces of evidence viz.; (i) evidence of a witness which was recorded by the police over two months after the occurrence; (ii) the letter written by the accused to the Deputy Commissioner making a confession and (iii) the confession made to S.R. who incorporated this in a letter to the Station House Officer.
Allowing the appeal to this Court, HELD : that the judgment of the trial court and the High Court had to be .set aside and the accused acquitted.
[736F] ( 1) If a witness professed to know about a gravely incriminating circumstance against a person accused of the offence of murder and the witness kept silent for over two months regarding the said incriminating circumstance against the accused, his statement relating to the incriminating circumstances, in the absence of any cogent reason, was bound to lose most of its value.
[73OB C] (2) The fact that no action was taken on the letter till it was taken into possession by the police, the incongruity of the portion of the letter relating to confession and the circumstances in which the accused is stated to have got the letter written all these make it unsafe to act upon the confession incorporated in the letter.
[730H] (3) The letter which was addressed by SR to the Station House Officer was in the nature of narration of what, according to SR, he had been told by the accused.
Such a letter would constitute a statement for the purpose of section 162, Cr.
P.C. The prohibition contained in section 162, Cr.
P.C. relates to all statements made, during the course of an investigation.
The prohibition relating to the use of a statement made to a police officer during the course of an investigation could not be set at naught by the police officer not himself recording the statement of a person but having it in the form of a communication addressed by a person concerned to the police officer.
If a statement made by a person to a police officer in the course of an investigation is inadmissible except for the purpose mentioned in section 162, the same would be true of a letter containing narration of facts addressed by a person to a police officer during the course of an investigation.
It is not permissible to circumvent the prohibition contained in section 1162 by the investigating officer obtaining a written statement of a person instead of the investigating officer himself recording that statement.
The restriction placed by section 162 on the use of statement made during the course of investigation is in general terms.
There is nothing in the section to show that the investigation must relate to any particular accused before a statement to the police pertaining to that accused can be held to be inadmissible.
The letter is, therefore, inadmissible in evidence.
[732C E; G] Sita Ram vs State of Uttar Pradesh, [1966] Supp.
S.C.R. 165 held inapplicable.