judgement:
Civil Appeal No. 2009 of 1978.
Appeal by Special Leave from the Judgment and Order dated 8/12th May, 1978 of the Calcutta High Court in Appeal from Original Order No. 884/76.
Devi Pal.
P. K. Pal, J. B. Dadachanji and K. J. John for the Appellant.
The appellant is a banking company incorporated in the United Kingdom with its registered office at London.
It carries on banking business in India, and is assessed under the Income tax Act, 1961.
The appellant filed a return of its income for the assessment year 1972 73.
During the assessment proceeding, the Income tax Officer issued a notice under section 142(1) of the Income tax Act requiring the appellant to produce certain account books and documents.
The appellant applied against the notice to the High Court at Calcutta under Articles 226 of the Constitution.
A learned Single Judge of the High Court did not accept the wide construction which the appellant sought to put upon the impugned notice, and construing it in specific limited terms he directed the appellant to comply with it.
The appellant preferred an appeal in the High Court.
Meanwhile, pursuant to the direction by the learned Single Judge, the Income tax Officer made an assessment order on March 31, 1977.
Thereafter, the appeal was allowed by a Division Bench of the High Court by its judgment dated May 8 and 12, 1978, and the impugned notice under section 142(1) and the 768 consequent assessment order were quashed.
But while doing so, the Division Bench also directed the Income tax Officer to make a fresh assessment.
Aggrieved by that direction, the appellant applied for, and obtained, special leave to appeal, to this Court.
The sole question before us is whether the High Court erred in directing a fresh assessment.
The appellant contends that the High Court was in error in making the direction because the assessment had already become barred by limitation and thereby a valuable right not to be assessed had accrued to the appellant, and the High Court was not competent to deprive the appellant of that accrued right.
It is necessary first to examine whether the bar of limitation had come into play at any time before the High Court passed the impugned order.
The assessment year under consideration is the year 1972 73.
By virtue of section 153(1) (a) (iii) of the Income tax Act, no assessment order in respect of that assessment year could be made after two years from the end of that assessment year.
The end of the assessment year is March 31, 1975.
However, the appellant filed the writ petition on March 17, 1975, fourteen days before the end of the period for making the assessment order.
On the same date, March 17, 1975, the learned Single Judge granted an interim injunction restraining the Income tax Officer from proceeding with the assessment, and on March 25, 1975 the injunction was made operative for the pendency of the writ petition.
The writ petition was disposed of by the learned single judge by his judgment dated August 31, 1976.
It is apparent that the assessment proceedings remained stayed throughout the period from March 17, 1975 to August 31, 1976 by virtue of the orders of the court.
As has been mentioned, the learned Single Judge disposed of the writ petition on August 31, 1976.
In his judgment, besides directing the appellant to comply with the notice under section 142(1) as construed by him, he also included a direction to the Income tax Officer to complete the assessment by March 31, 1977.
On September 22, 1976, he amended his judgment inasmuch as it now required that "the assessment for the relevant year must be completed on the 31st of March, 1977 but must not be completed before 31st March 1977.
" In other words, while the Income tax Officer could continue with the assessment proceedings he was restrained by the Court from making the assessment order before, and in fact could make it only on, March 31, 1977.
Now it is important to note that when the amendment was made by the learned Single Judge in his judgment, it was an amendment made by him to a judgment disposing of the writ petition and having regard especially to the nature and the terms of the amend 769 ment, it must be deemed to have taken effect as from August 31, 1976, the date of the original judgment.
In the appeal filed thereafter by the appellant, no interim order was made suspending the operation of the direction that the assessment order be made on March 31, 1977 only.
A stay order was made against the enforcement of the notice of demand alone.
Adhering to the directions of the learned Single Judge, the Income tax Officer made an assessment order on March 31, 1977.
In the result, the assessment proceeding remained pending during the entire period from March 17, 1975 to March 31, 1977 by successive orders of the Court.
If regard be had to clause (ii) of Explanation 1 to section 153, which provides that in computing the period of limitation for the purposes of section 153, the period during which the assessment is stayed by an order or injunction of any court shall be excluded, it is abundantly clear that the assessment order dated March 31, 1977 is not barred by limitation.
In computing the period for making the assessment, the Income tax Officer would be entitled to exclude the entire period from March 17, 1975, on which date there were fourteen days still left within the normal operation of the rule of limitation.
The assessment order was made on the very first day after the period of stay expired; it could not be faulted on the ground of limitation.
There is, therefore, no force in the submission of the appellant that the limitation for making the assessment had expired and a valuable right not to be assessed had thereby accrued to it, and that consequently the High Court was not competent to make the order directing a fresh assessment.
The next point is whether the High court possessed any power to make the order directing a fresh assessment.
The principal relief sought in the writ petition was the quashing of the notice under section 142(1) of the Income tax Act, and inasmuch as the assessment order dated March 31, 1977 was made during the pendency of the proceeding consequent upon a purported non compliance with that notice, it became necessary to obtain the quashing of the assessment order also.
The character of an assessment proceeding, of which the impugned notice and the assessment order formed part, being quasi judicial, the "certiorari" jurisdiction of the High court under Article 226 was attracted.
Ordinarily, where the High court exercises such jurisdiction it merely quashes the offending order and the consequential legal effect is that but for the offending order the remaining part of the proceeding stands automatically revived before the inferior court or tribunal with the need for fresh consideration and disposal by a fresh order.
Ordinarily, the High Court does not substitute its own order for the order quashed by it.
It is, of course, a different case where the adjudication by the High Court establishes a complete want of jurisdic 770 tion in the inferior court or tribunal to entertain or to take the proceeding at all.
In that event on the quashing of the proceeding by the High Court there is no revival at all.
But although in the former kind of case the High court, after quashing the offending order, does not substitute its own order it has power nonetheless to pass such further orders as the justice of the case requires.
When passing such orders the High court draws on its inherent power to make all such orders as are necessary for doing complete justice between the parties.
The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised.
The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it.
The present case goes further.
The appellant would not have enjoyed the advantage of the bar of limitation if, notwithstanding his immediate grievance against the notice under section 142(1) of the Income tax Act, he had permitted the assessment proceeding to go on after registering his protest before the Income tax Officer, and allowed an assessment order to be made in the normal course.
In an application under section 146 against the assessment order, it would have been open to him to urge that the notice was unreasonable and invalid and he was prevented by sufficient cause from complying with it and therefore the assessment order should be cancelled.
In that event, the fresh assessment made under section 146 would not be fettered by the bar of limitation.
Section 153(3)(i) removes the bar.
But the appellant preferred the constitutional jurisdiction of the High Court under Article 226.
If no order was made by the High Court directing a fresh assessment, he could contend as is the contention now before us, that a fresh assessment proceeding is barred by limitation.
That is an advantage which the appellant seeks to derive by the mere circumstance of his filing a writ petition.
It will be noted that the defect complained of by the appellant in the notice was a procedural lapse at best and one that could be readily corrected by serving an appropriate notice.
It was not a defect effecting the fundamental jurisdiction of the Income tax Officer to make the assessment.
In our opinion, the High Court was plainly right in making the direction which it did.
The observations of this court in Director of Inspection of Income tax (Investigation), New Delhi and Another vs Pooran Mall & Sons and another(1) are relevant.
It said: "The court in exercising its powers under article 226 has to mould the remedy to suit the facts of a case.
If in a particular case a court takes the view that the Income tax 771 Officer, while passing an order under section 132(5), did not give an adequate opportunity to the party concerned it should not be left with the only option of quashing it and putting the party at an advantage even though it may be satisfied that on the material before him the conclusion arrived at by the Income tax Officer was correct or dismissing the petition because otherwise the party would get an unfair advantage.
The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it.
But, in the circumstances of a case, the court might take the view that another authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice, the court may quash the order and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case.
Otherwise, it would mean that where a court quashes an order because the principles of natural justice have not been complied with, it should not while passing that order permit the tribunal or the authority to deal with it again irrespective of the merits of the case.
" The point was considered by the Calcutta High court in Cachar plywood Ltd. vs Income Tax Officer, "A" Ward, Karimganj, Dist., Cachar & Another(1) and the High court, after considering the provisions of section 153 of the Income Tax Act, considered it appropriate, while disposing of the writ petition, to issue a direction to the Income tax Officer to complete the assessment which, but for the direction of the High court, would have been barred by limitation.
Our attention has been drawn to a recent decision of this Court in Rajinder Nath etc.
vs The Commissioner of Income tax, Delhi(2) (by a Bench of this Court of which one of us was a member).
In that case, the Court considered the provisions of section 153(3) (ii) of the Income tax Act and laid down that the word "direction" in that subsection refers to a direction necessary for the disposal of the case and which the court has power to make while deciding the case.
In the view taken by us that the order made by the High Court directing a fresh assessment is necessary for properly and completely disposing of 772 the writ petition, the appellant can obtain no assistance from Rajinder Nath (supra).
Mr. A. P. Mohanti, who appeared for the intervener, supported the contention that the High Court was not entitled to make an order directing a fresh assessment, and has referred us to three cases, Pickles vs Falsham,(1), Anisminic Ltd. vs The Foreign Compensation Commission and Another(2), and Bath and West Countries Property Trust Ltd. vs Thomas (Inspector of Taxes)(3).
We are of the opinion that the cases are distinguishable.
In Pickles (supra), Cave L.C. declined to remand the case to the Special Commissioners because the time for making the requisite assessment had expired.
In Anisminic Ltd. (supra) the decision of the Commissioner considered by the House of Lords was a nullity.
The present case is one of a mere procedural lapse, an imperfect notice which is replaceable by a proper notice.
The third case, Bath and West Countries Property Trust Ltd. (supra) was again a case where it was too late for the Inspector to make a fresh assessment.
In the case before us a direction by the High court is sufficient to raise the bar of limitation, a power absent in the aforesaid cases.
In our Judgment, the order made by the High Court directing the Income tax Officer to make a fresh assessment was necessary in order to do complete justice between the parties.
The High Court had jurisdiction to make the order, and it acted in the sound exercise of its judicial discretion in making it.
The appeal is dismissed with costs.
V.D.K. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant, a banking company incorporated in the United Kingdom, carries on banking business in India and is assessed under the Income Tax Act, 1961.
The appellant filed a return of its income for the assessment year 1972 73.
During the assessment proceedings the Income Tax Officer issued a notice under section 142(1) of the Income Tax Act requiring the appellant to produce certain account books and documents.
The appellant applied against the notice to the High Court of Calcutta under Article 226 of the Constitution.
The High Court construing the notice in specifically limited terms directed the appellant to comply with it.
The appellant preferred an appeal in the High Court.
Meanwhile, pursuant to the direction by the learned single judge, the Income Tax Officer made an assessment order on March 31, 1977.
Thereafter the appeal was allowed by a Division Bench of the High Court by its judgment dated May 8 and 12, 1978, and the impugned notice under section 142(1) and the consequent assessment order were quashed.
But while doing so, the Division Bench also directed the Income Tax Officer to make a fresh assessment.
Aggrieved by that direction, the appellant applied for, and obtained special leave to appeal to this Court.
Dismissing the appeal, the Court ^ HELD: 1.
The High Court was competent to make the order directing a fresh assessment since the limitation for making the assessment had not expired and no valuable right to be assessed had thereby accrued to the appellant.
[769 D E] The facts of the case make it clear that the assessment proceedings remained pending during the entire period from March 17, 1975 to March 31, 1977 by virtue of successive stay orders of the Court.
If regard be had to clause (ii) of Explanation 1 to section 153 which provides that in computing the period of limitation for the purposes of section 153 the period during which the assessment is stayed by an order or injunction of any court shall be excluded, it is abundantly clear that the assessment order dated March 31, 1977 is not barred by limitation.
In computing the period for making the assessment, the Income Tax Officer would be entitled to exclude the entire period from March 17, 1975, on which date there were fourteen days still left within the normal 766 operation of the rule of limitation.
The assessment order was made on the very first day after the period of stay expired; it could not be faulted on the ground of limitation.
[769 B D] 2.
The character of an assessment proceeding of which the impugned notice and the assessment order formed part, being quasi judicial, the "certiorari" jurisdiction of the High Court under Article 226 was attracted.
Ordinarily, where the High Court exercises such jurisdiction it merely quashes the offending order, and the consequential legal effect is that but for the offending order the remaining part of the proceeding stands automatically reviewed before the inferior court or tribunal with the need for fresh consideration and disposal by a fresh order.
Ordinarily the High Court does not substitute its own order for the order quashed by it.
It is, of course, a different case where the adjudication by the High Court establishes a complete want of jurisdiction in the inferior court or tribunal to entertain or to take the proceeding at all.
In that event on the quashing of the proceeding by the High Court there is no revival at all.
But although in the former kind of case the High Court, after quashing the offending order, does not substitute its own order it has power nonetheless to pass such further orders as the justice of the case requires.
[769 F H, 770 A] 3.
When passing such orders the High Court draws on its inherent power to make all such orders as are necessary for doing complete justice between the parties.
The interests of justice require that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court, by the mere circumstance that it has initiated a proceeding in the court, must be neutralised.
The simple fact of the institution of litigation by itself should not be permitted to confer an advantage on the party responsible for it.
[770 A C] In the present case, the appellant would not have enjoyed the advantage of the bar of limitation if, notwithstanding his immediate grievance against the notice under section 142(1) of the Income Tax Act, he had permitted the assessment proceeding to go on after registering his protest before the Income Tax Officer, and allowed an assessment order to be made in the normal course.
In an application under section 146 against the assessment order, it would have been open to him to urge that the notice was unreasonable and invalid and he was prevented by sufficient cause from complying with it and therefore the assessment order should be cancelled.
In that event, the fresh assessment made under section 146 would not be fettered by the bar of limitation.
Section 153(3)(i) removes the bar.
But the appellant preferred the constitutional jurisdiction of the High Court under Article 226.
If no order was made by the High Court directing a fresh assessment, he could contend that a fresh assessment proceeding is barred by limitation.
That is an advantage which the appellant seeks to derive by the mere circumstance of his filing a writ petition.
It will be noted that the defect complained of by the appellant in the notice was a procedural lapse at best and one that could be readily corrected by serving an appropriate notice.
It was not a defect affecting the fundamental jurisdiction of the Income Tax Officer to make the assessment.
The High Court was plainly right in making the direction which it did.
[770 C G] Director of Inspection of Income Tax (Investigation) New Delhi and Anr.
vs Pooran Mall and Sons and Anr.
@ 395; followed.
767 Cachar Plywood Ltd. vs Income Tax Officer, 'A ' Ward, Karimganj Dist.
Cachar and Anr., (1978) 114 ITR (Cal.); approved.
Rajinder Nath etc.
vs The Commissioner of Income Tax, Delhi, ; distinguished.
Pickles vs Falsham, 9 Tax Cases, 261, 288; Anisminic Ltd. vs The Foreign Compensation Commission & Anr.
[1969] 1 All E.L.R. 208; Bath and West Countries Property Trust Ltd. vs Thomas (Inspector of Taxes) ; distinguished.


judgement:
: Criminal Appeal No. 53 of 1974.
From the Judgment and Order dated 2 11 1973 of the Orissa High Court in Govt.
Appeal No. 10/1971.
Y. section Chitle, and U. P. Singh for the Appellant.
D. Mookherjee and B. P. Parthasarthi for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI J.
This appeal under section 2(a) of the is directed against the judgment of the High Court of Orissa dated 2 11 1973 convicting the appellants section 302/149 of Indian Penal Code and sentencing them to imprisonment for life.
The appellants along with other accused person were tried before the Sessions Judge under section 302/149 for causing murder of two persons namely Ghansham and his brother Antarjami.
The Trial Court after considering the evidence acquitted all the accused of the charges framed against them.
Thereafter the State of Orissa filed an appeal before the High Court against the order of acquittal passed by the Sessions Judge and in the said appeal the High Court reversed the judgment of the Sessions Judge so far as the appellants were concerned and convicted and sentenced them as indicated above.
Hence this appeal before us.
The facts of the case are detailed in the judgment of the High Court and it is not necessary for us to repeat them.
It appears that shortly before the date of occurrence, there was a partition suit between the parties in respect of certain properties enjoyed by accused Banshi and Ghana.
On 2 12 1968, according to the prosecution, the accused persons armed with lathis, Bhusas and valies came to the house of the deceased Ghansham and called him out.
When Ghansham opened the door, the accused Banshi stabbed Ghansham on the chest as a result of which Ghansham fell down and died.
On hearing the alarm, the other deceased Antarjami who was brother of Ghansham went to the spot and he was also assaulted by the accused persons.
This occurrence had taken place near about 7.00 a.m. F. I. R. was sent to Bramhagiri Police Station where it was lodged and a case was registered.
After the usual investigation, police submitted charge sheet against all the accused persons who were tried by the Sessions Judge with the result mentioned above.
It appears that the Trial Court after considering the evidence of the eye witness examined before it came to a clear finding that none 804 of the eye witnesses were reliable and hence the accused could not be convicted on the basis of their testimony.
One of the main considerations which swayed with the trial Court in coming to this conclusion was that in view of the dying declaration exhibit 9 made by Antarjami, the evidence of the eye witnesses becomes improbable, and is in fact falsified.
The learned Sessions Judge also disbelieved the dying declaration as it was inconsistent with the oral evidence.
We might mention here that the Sessions Judge committed an error of law in rejecting the dying declaration because if the evidence of the eye witnesses was to be rejected on the ground that it was inconsistent with the dying declaration then it would in the circumstances not necessarily follow that the dying declaration was also unreliable and unworthy of credence.
The High Court while endorsing the findings of the Trial Court that no reliance could be placed on the eye witnesses appears to have founded the conviction of the appellants mainly on the basis of the dying declaration exhibit 9 recorded by Dr. Mohanty on 3 12 1968 at the hospital.
The High Court has given cogent reasons for holding that the dying declaration is absolutely true and reliable and was sufficient to establish the prosecution case against the appellants.
We have also gone through the entire dying declaration exhibit 9 very carefully and we find that the statement made by Antarjami is straight forward, rational, consistent and absolutely coherent.
There appears to be a ring of truth in the statement made by Antarjami.
Counsel for the appellant has fairly conceded that there is no evidence whatsoever to indicate that there was any possibility of prompting the deceased to make a tainted statement.
The dying declaration was attacked by the counsel for the appellant on three grounds.
In the first place, it was submitted that as the deceased Antarjami was in a state of shock, it was unsafe to rely on the dying declaration; secondly it was contended that as the dying declaration was incomplete, it should not be acted upon and thirdly it was pointed out that Antarjami had implicated some persons other than the accused also in the assault on him and his brother, therefore the dying declaration could not be said to be true.
So far as the first contention is concerned; namely whether the deceased was in a state of shock, it is true that the doctor who had recorded the dying declaration had stated that the deceased was in a state of shock because he had received a serious injury in the abdomen which has to be stitched.
The doctor was however not cross examined as to the fact whether or not despite the shock, the deceased had retained his mental faculties.
On the other hand; a 805 bare perusal of the dying declaration and the coherent and consistent statement made by Antarjami clearly reveals the fact that the deceased was fully conscious and was not suffering from any confusion or hallucination.
The deceased has clearly stated the motive for the occurrence namely dispute about the partition.
He has also named the four appellants and stated that he and his brother were assaulted by valies and lathis and it is not disputed by the prosecution that the appellants were armed with these weapons.
It is true that while naming the appellants, the deceased has also named some other persons but the mere fact that those persons were not challaned does not detract from the value of the dying declaration because it may well be that what the deceased was saying was true and the persons who were left out from the category of accused in the F.I.R. or the challan may be due to ulterior motives.
Dr. Chitale however relied on a passage in Taylor 's 'Principles and Practice of Medical Jurisprudence ' Twelfth Edition particularly on the following passage: 'Assess very carefully the mental condition of the patient.
When shock ensues upon violence, especially when severe loss of blood or some grievous head injury is leading to death, the intellect of the dying person becomes confused.
If the doctor observes any wandering or want of clearness in the mind of the patient, he must mention it in connection with his evidence; but this does not absolve him from his duty, although it should make him particularly careful when interpreting his notes.
" We are unable to place any reliance on these observations in absence of any question put to the doctor by the accused in his cross examination regarding the view expressed by the author regarding the state of mind of the deceased.
It has been held by this Court in several cases that whenever a particular view taken by authors of medical jurisprudence is adumbrated, the same must be put to the doctor to assess how far the view taken by the experts apply to the facts of the particular case.
On the other hand, the last certificate given by the doctor towards the end of the dying declaration that the patient became semi unconscious clearly shows that the deceased was, fully conscious when he started making the dying declaration before the doctor.
For these reasons therefore, the first ground taken by the appellant fails and is not tenable.
As to the second ground, namely that the dying declaration was incomplete, we are unable to accept this contention because we find that the deceased 806 Antarjami could not answer the last question which was "what more you want to say" because he became semi unconscious and was unable to answer any further question.
A perusal of the entire dying declaration would clearly show that the doctor had asked all the necessary questions that could be asked from the deceased and the last question was merely in the nature of a formality.
It is obvious that having narrated the full story there was nothing more that the deceased could add.
We are therefore unable to hold that the present dying declaration is an incomplete one.
Reliance was placed by the counsel for the appellant in the case of Cyril Waugh vs The King,(1)wherein it was held that no reliance could be placed where a dying declaration was incomplete.
Reference to the facts of the case would show that the statement made by the deceased was really incomplete in as much as the deceased was unable to complete the main sentence where he was trying to describe the genesis and motive of the occurrence.
The deceased in that case stated as "when he fired the short, he missed the other man.
The man has an old grudge for me simply because. ".
It is clear from the statement of the deceased in that case that the deceased wanted to give the motive for the occurrence and other relevant facts which he could not say before the dying declaration was closed.
This case therefore would have no application to the facts of the case.
As regards the last contention that the deceased had implicated some other persons also show that it was not true, we have already pointed out that merely because some other persons were named and not challaned would not by itself prove the falsity of the dying declaration.
Finally on the question of law, it was argued that a dying declaration unless corroborated should not be acted upon.
Reliance was placed on a decision of this Court in Ram Nath Madhoprasad & Ors.
vs State of M.P.(2).
This decision, no doubt, supports the contention of the appellant but since then this Court has departed from the view taken in the case referred to above and has held that if the dying declaration is believed, it can be relied upon for convicting the accused even if there is no corroboration.
In Khushal Rao vs The State of Bombay,(3) it was pointed out that section 32(1) of the Evidence Act attaches special sanctity to a dying declaration and unless such a dying declaration can be shown to be unreliable, it will not affect its admissibility.
It was further 807 held that although a dying declaration has to be closely scrutinised, once the Court comes to the conclusion that it is true, no question of corroboration arises.
In this connection, the Court made the following observations: "The Legislature in its wisdom has enacted in section 32(1) of the Evidence Act that "When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person 's death comes into question", such a statement written or verbal made by a person who is dead (omitting the unnecessary words) it self a relevant fact.
This provision has been made by the Legislature, advisedly, as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross examination, is not admissible.
The purpose of cross examination is to test the veracity of the statements made by a witness.
In the view of the Legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life.
At such a serious and solemn moment, that person is not expected to tell lies and secondly, the test of cross examination would not be available.
In such a case, the necessity of oath also has been dispensed with for the same reasons.
Thus, a statement made by a dying person as to the cause of death has been accorded by the Legislature a special sanctity which should, on first principles, be respected. . .
But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction.
" In this case this Court did not approve of the law laid down in the earlier decision which is reported in A.I.R. 1953, p. 420.
To the same effect is a later decision of this Court in the case of Tarachand Damu Sutar vs The State of Maharashtra(1) which is a decision rendered by five Judges of this Court which has also taken the view that once a dying declaration is found to be true, it can be 808 acted upon without any corroboration.
Thus, the view taken by this Court by the three judges in A.I.R. 1953, p. 420 stands overruled by this decision.
Same view was taken by this Court in the case of Mannu Raja & Anr.
vs State of M.P.(1) which has been relied upon by Mr. D. Mookherjee, counsel for the State.
There are a number of later decision of this Court also to the same effect but it is unnecessary to multiply authorities.
It is thus manifest that a person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives.
In fact the shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding the causes or circumstances leading to his death which are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth.
It is for these reasons that the Statute (The Evidence Act) attaches a special sanctity to a dying declaration.
Thus, if the statement of a dying person passes the test of careful scrutiny applied by the Courts, it becomes a most reliable piece of evidence which does not require any corroboration.
Suffice it to say that it is now well established by a long course of decisions of this Court that although a dying declaration should be carefully scrutinised but if after perusal of the same, the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration.
For these reasons, therefore, we find ourselves in complete agreement with the opinion of the High Court that even excluding the evidence of the eye witnesses, the dying declaration is true and reliable and sufficient to found the conviction of the appellant.
For these reasons therefore the appeal fails and is accordingly dismissed.
N.V.K. Appeal dismissed.

summary:
The appellants along with other accused persons were tried under section 302/149 I.P.C. for causing murder of two persons.
While one of the deceased died on the spot the other who was removed to hospital, gave a dying declaration to the doctor before dying.
The Sessions Judge finding that none of the eye witnesses examined was reliable and as the accused could not be convicted on the basis of their testimony acquitted all the accused.
He further held that the evidence of the eye witnesses was rendered improbable and was in fact falsified by the dying declaration exhibit 9.
On appeal by the State, the High Court held that the dying declaration exhibit 9 was absolutely true and reliable and was sufficient to establish the prosecution case.
It accordingly convicted and sentenced the appellants to imprisonment for life.
In the appeal to this Court, it was contended on behalf of the appellants that (1) as the deceased was in a state of shock, it was unsafe to rely on the dying declaration, (2) as the dying declaration was incomplete it could not be acted upon, and (3) as the deceased had implicated some persons other than the accused, the dying declaration could not be said to be true.
Dismissing the appeal, ^ HELD: 1.
The High Court was right in holding that even excluding the evidence of the eye witnesses the dying declaration is true and reliable and sufficient to found the conviction of the appellants.
[808 F] 2.
The Sessions Judge committed an error in law in rejecting the dying declaration because if the evidence of the eye witnesses was to be rejected on the ground that it was inconsistent with the dying declaration, it would not necessarily follow that the dying declaration was also unreliable and unworthy of credence.
[804 C] 802 3.
(a) This Court has held that whenever a particular view taken by authors of Medical Jurisprudence, is adumbrated, the same must be put to the doctor to assess how far the view taken by the experts apply to the facts of the particular case.
[805 G] In the instant case though the doctor who had recorded the dying declaration had stated that the deceased was in a state of shock because he had received a serious injury in the abdomen which had to be stitched, he was however not crossed examined as to the fact whether or not despite the shock, the deceased had retained his mental faculties.
On the other hand, the last certificate given by the doctor towards the end of the dying declaration that the patient became semi conscious clearly shows that the deceased was fully conscious when he started making the dying declaration before the doctor.
[804 H, 805 G] (b) A perusal of the entire dying declaration clearly shows that the doctor had asked all the necessary questions that could be asked from the deceased and the last question "what more you want to say" was merely in the nature of a formality.
Having narrated the full story, there was nothing more that the deceased could add.
The dying declaration was therefore not incomplete one.
[806 B] Cyril Waugh vs The King, , distinguished.
(c) Merely because some other persons named in the dying declaration were not challaned would not by itself prove the falsity of the dying declaration.
It may be that these, persons were left out from the category of accused in the F.I.R. or the challan due to ulterior motives.
[806 E, 805 C] 4.
A person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives.
The shadow of immediate death is the best guarantee of the truth of the statement by a dying person regarding the causes or circumstances leading to his death which are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth.
It is for these reasons that the Statute (The Evidence Act) attaches a special sanctity to a dying declaration.
[808 B C] 5.
It is well established that although a dying declaration should be carefully scrutinised if after perusal the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration.
[808 D E] Khushal Rao vs The State of Bombay ; ,; Tarachand Damu Sutar vs The State of Maharashtra ; ; Mannu Raja & Anr.
vs State of M.P. ; referred to.
Ram Nath Madhoprasad & Ors.
vs State of M.P. AIR 1953 SC 420, overruled.


judgement:
Civil Appeal No. 2113 of 1972.
Appeal by Special Leave from the Judgment and Order dated 10 2 1972 of the Madhya Pradesh High Court in Second Appeal No. 310 of 1960.
Shiv Dayal and J. section Sinha for the Appellant.
M. C. Bhandare, Mrs. Urmila Kapoor and Shobha Dixit for the Respondent.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal of one of the plaintiffs, by special leave, is directed against the judgment of the Madhya Pradesh High Court dated February 10, 1972, by which the suit for possession of the lands, which the plaintiffs had mortgaged, has been dismissed even though the trial court 's decree for redemption has been maintained.
As the matter has come up to this Court for the second time, at the instance of the plaintiffs it is not necessary to state all the facts for they have been mentioned in this Court 's earlier decision is Meharbansingh and others vs Nareshsingh and others.(1) It will be sufficient to refer to those facts which bear on the present controversy.
The suit lands belonged to Samle Singh, father of appellant Meharban Singh, and Jomdar Singh who executed a registered deed of mortgage in favour of Munshi Singh on May 20, 1939, for Rs. 2242/14/ .
It is not disputed before us that it was a usufructuary mortgage of land within the area of the former Gwalior State.
The mortgagors gave a notice to the mortgagee on May 15, 1943, for redemption of the lands but he refused to accept.
The mortgagors filed the suit for redemption on June 15, 1943.
As some other persons were alleged to be in possession of the suit lands, they were also impleaded 793 as defendants.
The Madhya Bharat Zamindari Abolition Act, 1951 (Samvat 2008), hereinafter referred to as the Act, came into force on October 2, 1951, and leave was granted to the plaintiffs to amend the plaint suitably.
The trial court decreed the suit on October 10, 1958, but disallowed the relief for the grant of mesne profits.
Three appeals were preferred against that judgment and decree of the trial court.
The appellate court dismissed the appeals of the defendants.
It held that the suit lands were the khud kasht lands of the mortgagors, and allowed the appeal of the plaintiffs for mesne profits from the date of the deposit of the mortgage money.
The defendants went in second appeal to the High Court; and the plaintiffs also preferred an appeal for refusal of mesne profits from the date of the cause of action.
The High Court partly allowed the defendants ' appeal by its judgment dated September 27, 1962.
It relied on this Court 's decision in Haji Sk.
Subhan vs Madhorao(1) and held that the plaintiffs were not entitled to possession.
It dismissed the appeal of plaintiff Meharbansingh.
He applied to this Court for special leave, and that led to this Court 's decision in Meherbansingh 's case (Supra) mentioned above.
This Court allowed the appeal and, after considering the relevant provisions of the Act, remitted the case to the High Court for fresh decision after notice to the state on the point whether the suit land were Khud kasht of the plaintiffs and they were entitled to remain in possession under section 4 of the Act.
The State was therefore allowed to be impleaded as a party and to file a written statement.
Certain additional issues were framed by the High Court and the case was remitted to the trial court for its findings.
When it came to the High Court again, with those findings it once again took the view that the plaintiffs were not entitled to possession of the suit lands although they were entitled to a decree for redemption.
It is against that judgment of the High Court dated February 10, 1973, that plaintiffs Meherbansingh has come up to this Court by way of the present appeal.
The facts of this case are thus quite simple, and its fate depends upon the answer to the question whether the plaintiffs were entitled to possession of the suit lands under sub section (2) of section 4 of the Act.
The Act made provision for the abolition and acquisition of the rights of proprietors in villages, "muhals", "chaks" or blocks settled on the zamindari system.
If therefore a person was a "proprietor" within the meaning of clause (a) of section 2, all his proprietary rights vested in the State free of all encumbrances by virtue of sub section (1) of section 3 of the Act from the date specified for the 794 purpose in the notification issued by the State Government.
It is not disputed that the specified date for purposes of the present case was October 2, 1951.
The consequences of the vesting of an estate under section 3 have been stated in section 4.
We are not concerned with sub section (3) of that section, and it will be sufficient to refer to clauses (a) and (f) of sub section (1) and sub section (2) of Section 4.
Clause (a) of sub section (1) of section 4 provides that save as otherwise provided in the Act, the following consequences shall ensue notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force, "(a) all rights, title and interest of the proprietor in such area, including land (cultivable, barren or Bir), forest, trees, fisheries, wells (other than private wells), tanks, ponds, water channels, ferries, pathways, village sites, hats, and bazars and mela grounds and in all sub soil, including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State free from all encumbrances;" This provision therefore had the effect of terminating the proprietary rights of a proprietor in his estate and in vesting them in the State free from all encumbrances.
The legislature has taken care to deal with the fate of mortgages, in clause (f) of sub section (1) of section 4, which reads as follows, "(f) every mortgage with possession existing on the property so vesting or part thereof on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such property or part thereof be deemed without prejudice to the rights of the State under section 3, to have been substituted by a simple mortgage." So a mortgage with possession, which existed on the date immediately preceding the date of vesting of the property, was deemed to have been substituted by a simple mortgage.
That was to be so without prejudice to the rights of the State under section 3.
A mortgagee who was in possession of lands under a deed of mortgage, e.g. a usufructuary mortgagee, this lost possession of the lands by operation of the law, and his mortgage became nothing more than a simple mortgage from the date of the vesting of the lands in the State.
In other words, he lost possession of the lands which were once mortgaged with him with possession, and was left only with the normal right of a simple mortgagee to realise the mortgage money.
795 While that was the fate of the mortgagee under the Act, the fate of the mortgagor, who was once the proprietor of the lands, was even worse, for he lost his proprietary rights in the lands because of their vesting in the State under section 3 as aforesaid and had, nonetheless, to fulfil his obligation as a mortgagor to the extent of the amount secured under the mortgage.
It appears that the legislature therefore thought of alleviating the lot of those of such proprietors whose cases fell under sub section (2) of section 4 of the Act.
The subsection reads as follows, "(2) Notwithstanding anything contained in sub section (1), the proprietor shall continue to remain in possession of his khud kasht land, so recorded in the annual village papers before the date of vesting." So only those proprietors were permitted to continue to remain in possession of their lands who had khud kasht lands and the lands were recorded as khud kasht in the annual village papers before the date of vesting.
The expression khud kasht has been defined in clause (c) of section 2 of the Act to means inter alia, land cultivated by the zamindar himself or through employees or hired labourers.
Clause (c) of section 2 of the Act states that words and expressions used in the Act, but not defined in it, shall have the same meaning as assigned to them in Qanoon Mal, Gwalior State, Samvat 1983.
The expression "zamindar" has been defined in clause (13) of section 2 of the Qanoon Mal to mean a person who has the rights mentioned in it.
It is not disputed before us that the plaintiffs were zamindars under that definition, and were proprietors of their lands.
It is also not disputed before us that if a person was a zamindar and cultivated the land himself or through employees or hired labourers, that would be his khud kasht cultivation within the meaning of clause (c) of section 2 of the Act.
It would follow that if, in a given case, it was shown that a proprietor had khud kasht land which was so recorded in the annual village papers before the date of vesting of the lands in the State, he was entitled to continue to remain in possession of those lands.
This concession to the proprietor was by way of a rider to the rigorous provisions of section 3 of the Act regarding the vesting of his estate in the State, and if a proprietor was able to establish that he was entitled to its benefit, there could be no reason why it should not be allowed to him.
It may be that the provision for the vesting of the estate in the State under section 3 and, in particular, that relating to the loss of possession of the mortgagee under clause (f) of section 4, operated harshly on a mortgagee with possession, and he had to content himself with the other provisions in the Act for the satisfaction of the debt owed to him by the 796 proprietor, but the law allowed him nothing more after the date of the vesting of the estate in the State.
The lot of the mortgagor proprietor was in fact far worse, for while the Act divested him of the proprietary interest in the lands held by him and vested those rights in the State, it held him liable as if his mortgage was a simple mortgage and left him only with the remedy of claiming compensation, which was itself overridden with his liability to his creditors.
In the plight in which he was placed by the land reforms legislation which was the subject matter of the Act, it was quite reasonable for the legislature to allow him, notwithstanding anything contained in sub section (1) of section 4 which enumerates consequences of the vesting of the estate in the State, the benefit of what sub section (2) of that section provided, and that also on his satisfying the rigorous conditions of the sub section mentioned above.
Reference in this connection may also be made to section 37 of the Act, sub section (1) of which provides that every proprietor who is divested of his proprietary rights shall be "a pacca tenant of the khud kasht land in his possession and the land revenue payable by him shall be determined at the rates fixed by the current settlement for the same kind of land.
" In fact, when this Court examined the matter on the earlier occasion, it took notice of the above provisions of the Act and observed as follows, "The proprietor however, notwithstanding other consequences of the vesting in a State, is entitled to continue to remain in possession of his khud kasht land which is so recorded in the annual village papers before the date of vesting.
Now it was clearly open to the plaintiffs to show that the land in question was khud kasht and, therefore, in accordance with section 4 they were entitled to remain in possession thereof.
" In other words, this Court took the view that while the mortgagors (appellants) fulfilled the other requirements of the law, their claim to possession of the khud kasht lands under sub section (2) of section 4 of the Act had to be decided on the basis of the facts, and it was open to them to show that the lands were khud kasht and they were entitled to remain in possession in terms of sub section (2) of section 4.
That was the purpose why the case was remanded to the High Court and an opportunity was given to the State to appear and contest the claim of the plaintiffs on that basis.
As has been stated, the case went back to the High Court which in its turn, impleaded the State as a party to the suit, permitted it to file a written statement, added certain issues and sent the case to 797 the trial court for submitting its findings after giving the parties an opportunity to adduce further evidence.
And when it went back to the High Court with the findings of the trial court, the High Court stated as follows in its judgment under appeal, "After impleading the State as a party, the following issue, inter alia was remitted to the lower court for recording a finding after giving both the parties an opportunity to adduce evidence: "Whether the land in suit was recorded as khud kasht immediately before the date of vesting.
" The parties filed certain documents but did not adduce any oral evidence on the point.
The trial court has answered the issue in the affirmative.
It was not disputed before me that the land was recorded as Khud kasht in the names of the plaintiffs at the time of vesting,. " There can be no doubt, therefore, that the trial court recorded the finding, on the basis of the evidence before it, that the suit lands were recorded as the khud kasht lands of the plaintiffs before the date of the vesting of the estate.
That was in fact not disputed in the High Court.
All that the High Court had then to do was to decide whether the appellant was entitled to the benefit of sub section (2) of section 4 of the Act, for that was the clear direction of this Court in the earlier judgment.
It is not disputed before us that the plaintiffs were the proprietors of the suit lands, and it cannot be disputed that as they mortgaged them with possession with defendant Munshi Singh, they were themselves in possession upto the date of the mortgage, and as it has been found as a fact that the lands were recorded as khud kasht lands of the mortgagors in the annual village papers before the date of vesting, they were clearly entitled to a decree for possession in terms of sub section (2) of section 4 and there was no occasion for the High Court to examine the consequence of their losing the possession of the lands after the mortgage.
It has to be appreciated that possession is always lost by the mortgagor in the case of a mortgage with possession.
But when clause (f) of sub section (1) of section 4 gave the mortgagor the benefit of sub section (2) of that section to claim the right to remain in possession of his khud kasht land which was in his possession upto the date of mortgage, if the strict requirement of sub section (2) was shown to exist, there could be no reason why it should be denied to the plaintiffs.
It may be mentioned in this connection that when the case came up in first appeal before the Second Additional District Judge of Bhind, 798 he examined the statements of Himachal Singh DW 1, Ram Krishan DW 2 and Hanumant Singh DW 3.
Himachal Singh was a cousin of mortgagee Munshi Singh, Ram Krishan DW 2 was a nephew of Munshi Singh and Hanumant Singh DW 3 was himself a defendant.
On a consideration of their statements, the court of first appeal reached the conclusion that the mortgagors were themselves cultivating the land and thereafter the mortgagee got it cultivated through his relatives.
But even if it were assumed that the mortgagee really inducted tenants in the lands during the period of the mortgage, their tenure was bound to end on the redemption of the mortgage according to the ordinary law of redemption unless, of course, they could lay claim to protection under any other law.
Reference in this connection may be made to the decision of this Court in Mahabir Gope and others vs Harbans Narain Singh and others(1) where the law has been laid down as follows, "The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has.
A mortgagee cannot, therefore, create an interest in the mortgaged property which will inure beyond the termination of his interest as mortgagee.
Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it if it were his own; and he must not commit any act which is destructive or permanently injurious to the property; see section 76, sub clauses (a) & (e) of the Transfer of Property Act.
It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by him must come to an end at redemption.
" Care was taken to state further in that case that if during the permissible settlement by a mortgagee in possession with a tenant in the course of prudent management, any right sprang up in the tenant by conferral or creation by statute, that would be a "different matter altogether", for that would then be an "exception to the general rule." The decision in Mahabir Gope 's case (Supra) was applied or was followed in Harihar Prasad Singh and another vs Mst.
of Munshi Nath Prasad and others(2) where it was held as follows, "As the mortgagees are neither proprietors nor tenure holders as defined in the Act, the tenants holding under 799 them could not claim to be raiyats as defined in sections 5(2) and 5(3), and no occupancy rights could therefore be acquired by them under section 21 of the Act.
" That decision was again followed in Asa Ram and another vs Mst.
Ram Kali and another(1) also, and was held as follows, "But where there is no such prohibition, the only consequence is that the parties will be thrown back on their rights under the Transfer of Property Act, and the lessees must still establish that the lease is blinding on the mortgagors under s.76(a) of that Act.
" Reference may also be made to Prabhu vs Ramdev and others(2) where again reference was made to the decision in Mahabir Gope (supra) and the legal position was reiterated as follows, "Having made these observations, however, this Court has taken the precaution to point out that even in regard to tenants inducted into the land by a mortgagee cases may arise where the said tenants may acquire rights of special character by virtue of statutory provisions which may, in the meanwhile, come into operation.
A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period, it was observed, was a different matter altogether.
Such a case is clearly an exception to the general rule prescribed by the Transfer of Property Act.
It will thus be seen that while dealing with the normal position under the Transfer of Property Act, this Court specifically pointed out that the rights of the tenants inducted by the mortgagee may conceivably be improved by virtue of statutory provisions which may meanwhile come into operation.
That is precisely what has happened in the present case.
During the continuance of the mortgage section 15 of the Act came into operation and that made the respondents Khatadars who are entitled to claim the benefit of section 161 of the Act.
" It is therefore well settled that the normal law of mortgage would apply and tenants inducted by the mortgagee would go out of the lands on redemption of the mortgage, if, in the meanwhile, law has 800 not been shown to intervene for their protection.
As, in the instant case, the law expressly gave the benefit of sub section (2) of section 4 to a proprietor like the appellant, the tenants inducted by the mortgagee will have no statutory right of possession.
A vain attempt was made to invoke section 41 of the Act for the protection of the tenancy rights of the mortgagees, but their learned Counsel was unable to show how they could claim the benefit of that section in face of the clear provision of sub section (2) of section 4 of the Act.
In fact all that Mr. Bhandare was able to contend on behalf of the respondents was that their case was covered by this Court 's decision in Haji Sk.
Subhan 's case (supra).
That decision formed the basis of the earlier decision of the High Court dated September 27, 1962, but this Court clearly pointed out in its earlier decision that the High Court was "in error in allowing the appeal before it and in dismissing the plaintiff appellants ' suit for possession on the authority of this Court 's decision in the case of Haji Sk.
Subhan" (supra).
It is therefore not necessary for us to say, once again, why that decision cannot govern the present dispute.
In the result, we allow the appeal and restore the decree of the court of first appeal with costs.
P.B.R. Appeal allowed.

summary:
By virtue of section 3(1) of the Madhya Bharat Zamindari Abolition Act, 1951, rights of proprietors in villages, Muhalas and Chaks or blocks settled on the zamindari system vested in the State free from all encumbrances.
In so far as the mortgages were concerned a mortgage with possession which existed on the date immediately preceding the date of vesting of the property was deemed to have been substituted by a simple mortgage.
The mortgagee who was in possession of lands under a deed of mortgage, for example a usufructuary mortgage, lost possession of the lands by operation of law and his mortgage became a simple mortgage from the date of vesting of the lands in the State.
On the other hand a mortgagor who was once the proprietor of the lands, though lost his proprietary right in the lands because of their vesting in the State, had to fulfil his obligation as a mortgagor to the extent of the amount secured under the mortgage.
To alleviate the lot of such proprietors section 4(2) of the Act provided that notwithstanding anything contained in sub section (1) a proprietor shall continue to remain in possession of his khud kasht land so recorded in the annual village papers before the date of vesting.
The expression khud kasht is defined to mean "land cultivated by the Zamindar himself or through employees or hired labourers".
If a person was a zamindar and cultivated the land himself or through employees or hired labourers that would be his khud kasht cultivation within the meaning of section 2(c) of the Act, that is, in a given case if it was shown that a proprietor had khud kasht land which was so recorded in the annual village papers before the date of vesting of the lands in the State, he was entitled to continue to remain in possession of those lands.
Section 37(1) provides that every proprietor who is divested of his proprietary rights shall be a pacca tenant of the khud kasht land in his possession and the land revenue payable by him shall be determined at the rates fixed by the current settlement for the same kind of land.
In the present case, the plaintiff 's suit for redemption of the mortgage which was an usufructuary mortgage, was decreed by the trial court in respect of the relief of redemption but the claim in regard to the mesne profits was disallowed.
Against that decree three appeals were filed before the District Court, one of them being the appeal by the plaintiffs challenging the refusal by the trial court to grant mesne profits.
The plaintiff 's appeal was partly allowed granting mesne profits from the date of deposit of the mortgage money in court.
The other two appeals were dismissed.
The matter was taken in appeal to the High Court by the defendants in second appeal.
The plaintiffs also preferred a second appeal claiming full relief in so far as mesne profits were concerned.
The High Court partly allowed the defendants ' appeal holding that the plaintiffs were entitled to redeem the mortgage by paying the 791 mortgage money but were not entitled to get possession of the mortgaged land, since according to the High Court, the proprietary rights including the right to get possession had become vested in the State under the aforesaid Act.
It further held that the plaintiffs were only entitled to claim compensation from the Government in lieu of their proprietary rights after redeeming the mortgage by making payment of the mortgage money.
Against the decree of the High Court, the plaintiffs filed an appeal before this Court in Meharban Singh & Ors.
vs Naresh Singh & Ors.
[1970] 3 SCR 18.
This Court set aside the decree of the High Court and remitted the case back to the High Court for a fresh decision on the question whether the lands in dispute were khud kasht lands and to pass a decree for possession if they were found to be so in view of sections 4(1)(f) and 4(2) of the Act.
After the case went back to the High Court, the State Government was impleaded as a party to the suit and was permitted to file a written statement.
Certain additional issues were raised by the High Court on the basis of the new pleadings.
The High Court sent the case to the trial court for recording its finding on the issue 'whether the land in dispute was recorded as khud kasht land immediately before the date of vesting? ' after giving the parties an opportunity to adduce further evidence on the said additional issue and to resubmit the record to it.
The trial court held that the suit land was khud kasht land in possession of the plaintiffs before the date of vesting of the estate and submitted the said finding to the High Court.
The said finding was not in fact disputed before the High Court.
All that the High Court was to decide was whether the plaintiffs were entitled to the benefit of sub section (2) of section 4 of the Act but the High Court once again took the view that the plaintiffs were not entitled to get possession of the suit lands although they were entitled to a decree for redemption.
It is against the judgment of the High Court, the above appeal has been filed.
Allowing the appeal and restoring the decree of the Court of first appeal, ^ HELD: When the case went back to the High Court all that the High Court was to decide was whether the appellant was entitled to the benefit of section 4(2) of the Act in terms of the directions given by this Court.
Since the plaintiffs were the proprietors of the suit lands there can be no dispute that till the time of mortgage the suit lands were in their possession.
Secondly since the lands were recorded as khud kasht lands of the mortgagors in the annual village papers before the date of vesting, they were clearly entitled to a decree for possession in terms of section 4(2) and there was no occasion for the High Court to examine the consequences of their losing the possession of the lands after the mortgage.
When section 4(1) (f) read with section 4(2) gave the mortgagor the benefit of the right to remain in possession of his khud kasht, which was in his possession upto the date of mortgage, there could be no reason why it should be denied to the plaintiffs.
It was found on evidence by the first court of appeal that the mortgagors were themselves cultivating the lands and thereafter the mortgagee got them cultivated through his relatives.
Assuming that the mortgagee really inducted tenants in the lands during the period of mortgage their tenure was bound to end on the redemption of the mortgage according to the ordinary law of redemption unless they could lay claim to protection under any other law.
[797 E H] It is well settled that the normal law of mortgage would apply and tenants inducted by the mortgagee would go out of the lands on redemption of the 792 mortgage if in the meanwhile the law has not been shown to intervene for their protection.
In the instant case the law expressly gave the benefit of section 4(2) to a proprietor like the plaintiffs.
The tenants inducted by the mortgagee would have no statutory right to possession.[800 A B] Mahabir Gope and others vs Harbans Narain Singh and others ; ; Narihar Prasad Singh and Another vs Mst. of Munshi Nath Prasad and others ; ; Asa Ram and another vs Mst.
Ram Kali and another ; Prabhu vs Ramdev and others ; , referred to.
Section 41 which deals with protection of tenancy rights of the mortgagees cannot be invoked by the mortgagees in the case of section 4(2).
[800 B C]


judgement:
Civil Appeal No. 2098 of 1972 From the Judgment and Order dated 5 8 1971 of the Calcutta High Court in Income Tax Reference No. 109/65.
D.V. Patel, J. Ramamurthy and Miss A Subhashini for the Appellant.
section R. Banerjee, Mrs. Indu Goswamy and Arvind Minocha for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
: This appeal by certificate granted by the High Court at Calcutta under section 66A(2) of the Indian Income tax Act, 1922 is directed against the judgment dated August 5, 1971 of that High Court disposing of an income tax reference.
The respondent assessee is a registered firm and owns several collieries in West Bengal and Bihar.
One of the collieries is known as the South Samla Colliery.
The South Samla colliery was under military occupation from 1942 and was released in 1955.
During the period of military occupation the assessee incurred expenditure on account of minimum royalty payable in respect of the colliery, the surface rent and salaries for the watch and ward employees.
The expenditure was allowed in income tax proceedings as a business expenditure.
After the colliery was released by the military, the assessee incurred a further expenditure amounting to Rs. 1,61,742 on the colliery with a view to resuming mining operations.
The expenditure was incurred during the previous year beginning October 24, 1957 and ending November 11, 1958 relevant to the assessment year 1959 60.
In the assessment proceedings for that assessment year the assessee claimed a deduction of the amount of Rs. 1,61,742 under section 10(2) (xv) of the Indian Income Tax Act, but the deduction was disallowed by the Income tax Officer on the ground that the expenditure was capital in nature.
On appeal, the Appellate Assistant Commissioner affirmed that the expenditure was in the nature of capital expenditure.
The assessee proceeded in second appeal, but the Income Tax Appellate Tribunal, without giving any reasons of its own, merely recorded its agreement with the income tax authorities.
The assessee obtained 761 a reference to the High Court at Calcutta for its opinion on the following question: "Whether on the facts and circumstances of the case, the Income tax appellate Tribunal was justified in holding that the expenditure clammed on the South Samla Colliery at Rs. 1,61,742 was capital in nature.
" The High Court noted the following facts: The assessee carried on business in coal as the owner of various collieries.
The South Samla Colliery, which was one of them, was occupied by the military from 1942 until it was derequisitioned in 1955.
During that period the assessee did not, because he could not, work the colliery.
He continued, however, carrying on his business in coal and working other collieries during that period.
While the South Samla Colliery remained under military occupation the assessee incurred expenditure on payment of surface rent and minimum royalty in respect of that colliery and also on account of salary for the watch and ward staff.
The expenditure had been claimed and allowed as business expenditure of the assessee.
After the colliery was handed over to the assessee upon derequisition, the assessee incurred, during the relevant period, an expenditure of Rs. 1,61,742 in renovating the building, reconditioning the machinery and clearing the land of debris accumulated over a number of years.
The expenditure of Rs. 1,61,742 consisted of Rs. 66,937 spent on the staff and labour force by way of salaries, wages and other benefits and an amount of Rs. 94,805 spent on the purchase of various stores, machinery repairs, dhowrah repairs etc.
This expenditure had to be incurred by the assessee for the purpose of putting the machinery in working order and bringing the colliery to a state where the mining operations could be resumed.
The colliery had not started working and mining operations had not been resumed during the relevant year.
The High Court observed that the assessee was carrying on its business throughout and the circumstance that one of the collieries was not being worked did not affect the carrying on of that business.
The business of the assessee, the High Court said, had to be considered as a whole and not on the basis of its different sources of supply or units of production.
The High Court held that on the facts admitted and found it could not be said that any fresh asset had been acquired by the assessee by spending Rs. 1,61,742.
The expenditure, it observed, was incurred by the assessee for the purpose of carrying on an existing concern and not for acquiring any concern not in existence.
Ac 762 cordingly, it held that the expenditure was in the nature of revenue expenditure and, therefore, answered the question in favour of the assessee.
In this appeal the first contention raised by the Revenue is that the High Court had no jurisdiction to re appraise the facts and therefore its finding on the nature of the expenditure is vitiated.
The contention is without substance.
The facts on which the High Court has relied are admitted between the parties or are facts found by the income tax authorities.
We have no hesitation in rejecting the first contention.
The second contention is that the claim of the assessee must be considered with reference to section 10(2)(v) and not section 10(2)(xv) of the Act.
It is urged that if s.10(2) (v) is the relevant clause, being the specific provision in respect of expenditure on current repairs to buildings and machinery, there is no justification for relying on s.10(2) (xv).
section 10(2) (xv) is a residuary clause, and deals with expenditure not being an allowance of the nature described in any of the preceding clauses of s.10(2).
The submission is that where repairs are effected to buildings and machinery a deduction under s.10(2) is permissible only in respect of current repairs, and repairs which are not "current repairs" are not intended to be the subject of relief.
The Act, it is contended, limits the repairs to "current" repairs.
The repairs made by the assessee, it is said, cannot be described as "current repairs" Now, this contention rests on the principle that if a special provision covers the case, resort cannot be had to a general provision.
It seems to us that if the renovation of the building, the reconditioning of machinery and the removal of debris cannot be described as "current repairs" and we assume that to be so the case would be entitled to consideration under s.10(2)(xv).
Section 10(2)(v) deals with current repairs only.
The subject matter of s.10(2) (v) is "current repairs" and it appears difficult to agree that repairs which are not "current repairs" should not be considered for deduction on general principles or under s.10(2) (xv).
There must be very strong evidence that in the case of such repairs, the Legislature intended a departure from the principle that an expenditure, laid out or expended wholly and exclusively for the purposes of the business, and which expenditure is not capital in nature, should not be allowed in computing the income from business.
There is nothing in the language of s.10(2) (v) which declares or necessarily implies that repairs, other than, current repairs, will not qualify for the benefit of that principle.
We must remember that on accepted commercial practice and trading principles an item of business expenditure must be deducted in order 763 to arrive at the true figure of profits and gains for tax purposes.
The rule was held by the Privy Council in C.I.T. vs Chitnis(1) to be applicable in the case of losses, and it has been applied by the courts in India to business expenditure incurred by an assessee.
Motipur Sugar Factory Ltd. vs C.I.T., Bihar and Orissa(2) and Devi Films Ltd. vs C.I.T. Madras(3).
The principle found favour with this Court in Badridas Daga vs C.I.T.(4) and Calcutta Co. Ltd. vs C.I.T. West Bengal(5).
the contents of that rule be true on general principle, there is good reason why the scope of s.10(2) (xv) should be construed liberally.
In our opinion, even if the expenditure made by the assessee in the present case cannot be described as "current repairs", he is entitled to invoke the benefit of section 10(2) (xv).
We may mention that in The Law Shipping Co. Ltd. vs Commissioners of Inland Revenue(6) it has been held that accumulated arrears for repairs are none the less repairs necessary to earn profits, although they have been allowed to accumulate.
The question then is whether section 10(2) (xv) is attracted.
There can be little doubt that the expenditure incurred is incidental to the business of the assessee.
It was involved in renovating the buildings, reconditioning the machinery and clearing the debris, from the land.
All the work done was for the purpose of resuming the operation of the colliery.
The expenditure was laid out wholly and exclusively for the purposes of the business.
We do not think there can be any dispute as to that.
But the more serious question is whether the expenditure can be regarded as capital in nature, for if that be so the benefit of section 10(2) (xv), on its plain terms, must be denied.
Now, whether an expenditure can be described as capital or revenue falls to be decided by several tests, each one of which approaches the question from one perspective or another, conditioned by the particular facts of each case.
We need not refer to all of them.
On the facts of the present case, it seems sufficient to mention the tests laid down by this Court in Assam Bengal Cement Co. Ltd. vs C.I.T. West Bengal(7).
The business of the assessee in the present case was coal mining, and it was carried on by the operation of a network of collieries.
Hach colliery was a unit of production.
While the several units of production continued to be 764 employed and the business continued to be carried on, one alone of the units, the South Samla Colliery was compelled to suspend production.
The suspension was expected to be of temporary duration, because the property was merely requisitioned for military use, it was not acquired.
As soon as the property was de requisitioned, the assessee took measures to resume production of coal.
It was necessary to remove the impediments which had come in the way by reason of the temporary suspension of work.
The buildings were removated, the machinery reconditioned and the accumulated debris removed from the land.
The colliery was, in a word, reinstated to the condition necessary for ensuring production.
No new asset was brought into existence; no advantage for the enduring benefit of the business was acquired.
An activity which was continuously in operation but had been temporarily suspended was to be resumed.
It is immaterial that during the year under consideration there was no mining activity.
That the colliery was regarded as an asset of a continuing business all along, even during the period of military occupation, is evidenced by the fact that expenditure incurred by the assessee during that period in respect of the colliery was allowed as a permissible deduction in its income tax assessments.
The expenditure of Rs. 1,61,742 under consideration in the present case was also expenditure laid out as part of the process of profit earning.
The nature of the expenditure is clearly revenue in character.
The High Court is right in holding that the expenditure is not of a capital nature.
The appeal is dismissed with costs.
N.V.K. Appeal dismissed.

summary:
The respondent assessee carried on business in coal as the owner of various collieries.
One of the collieries, was occupied by the military from 1942 until it was derequisitioned in 1955.
During that period the assessee did not work the said colliery: although the business in coal and working of the other collieries were carried on.
While the colliery remained under military occupation the assessee incurred expenditure in respect of the colliery on account of payment of surface rent, minimum royalty and salary for the watch and ward staff, which expenditure was claimed and allowed as business expenditure of the assessee.
After the colliery was handed over to the assessee upon derequisition the assessee incurred an expenditure of about Rs. 1.6 lakhs in renovating the building, reconditioning the machinery and clearing the land of all debris accumulated over a number of years.
In the assessment proceedings for the assessment year 1959 60 the assessee claimed deduction of the aforesaid amount under section 10(2)(xv) of the Indian Income Tax Act.
The deduction was disallowed by the Income Tax officer on the ground that the expenditure was capital in nature.
The appeals by the assessee to the Appellate Assistant Commissioner and the Income Tax Appellate Tribunal were dismissed.
In the reference to the High Court at the instance of the assessee the High Court observed that the business of the assessee had to be considered as a whole and not on the basis of its different sources of supply or units of production, and held that on the facts admitted and found it could not be said that any fresh asset had been acquired by the assessee by spending Rs. 1.6 lakhs and that the expenditure was incurred by the assessee for the purpose of carrying on an existing concern.
The expenditure was, therefore, in the nature of a revenue expenditure.
In the appeal by the Revenue to this Court, it was contended: (a) where repairs are effected to buildings and machinery a deduction under section 10(2) is permissible only in respect of "current repairs" and repairs which are not "current repairs" are not intended to be the subject of relief, (b) the repairs made by the assessee cannot be described as "current repairs", and (c) if section 10(2) (v) is the relevant clause, being the specific provision in respect of expendi 759 ture on "current repairs" to buildings and machinery, there is no justification for relying on section 10(2)(xv) a residuary clause.
Dismissing the appeal, ^ HELD: 1.
The High Court was right in holding that the expenditure was not of a capital nature.
[764 E] 2.
The expenditure of Rs. 1.6 lakhs was expenditure laid out as part of the process of profit earning.
The nature of the expenditure was clearly revenue in character.
[764 D] 3.
There can be little doubt that the expenditure incurred was incidental to the business of the assessee.
It was involved in renovating the buildings, reconditioning the machinery and clearing the debris, from the land, for the purpose of resuming the operation of the colliery.
The expenditure was laid out wholly for the purpose of the business.
[763 D] 4.
There must be strong evidence that in the case of repairs which are not "current repairs", the Legislature intended a departure from the principle that an expenditure laid out or expended wholly and exclusively for the purposes of the business, and which expenditure is not capital in nature, should not be allowed in computing the income from business.
There is nothing in the language of section 10(2) (v) which declares or necessarily implies that repairs, other than, "current repairs", will not qualify for the benefit of that principle.
On accepted commercial practice and trading principles an item of business expenditure must be deducted in order to arrive at the true figure of profits and gains for tax purposes.
[762 G 763 A] C.I.T. vs Chitnis 50 I.A. 292; Motipur Sugar Factory Ltd. vs C.I.T. Bihar and Orissa, ; Devi Films Ltd. vs C.I.T. Madras, ; Badridas Daga vs C.I.T. , 15; Calcutta Co. Ltd. vs C.I.T. West Bengal, , 9; the Law Shipping Co. Ltd. vs Commissioners of Inland Revenue 12 Tax Cases 621,625 referred to.
The scope of Section 10(2)(xv) should be construed liberally.
[763 B] In the instant case even if the expenditure made by the assessee cannot be described as "current repairs" he is entitled to invoke the benefit of section 10(2)(xv).
[763 C] 5.
Whether an expenditure can be described as capital or revenue falls to be decided by serial tests, each one of which approaches the question from one perspective or another, conditioned by the particular facts of each case.
[763 F] Assam Bengal Cement Co. Ltd. vs C.I.T. West Bengal referred to.
In the instant case the business of the assessee was coal mining and it was carried on by the operation of a network of collieries.
Each colliery was a unit of production.
While the several units of production continued to be employed and the business continued to be carried on, one alone of all the units, was compelled to suspend production.
The suspension was due to the property being requisitioned for military use.
As soon as it was derequisitioned the assessee 760 took measures to resume production of coal.
The buildings were renovated, the machinery reconditioned and the accumulated debris removed from the land No new asset was brought into existence, no advantage for the enduring benefit of the business was acquired.
The activity which was continuously in operation but had been temporary suspended was resumed.
[763 G 764 C]