judgement:
Civil Appeals Nos.
209 & 2280 of 1970.
No. 209/70 arising out of certificate & CA.
No. 2280/70 arising out of special leave from the common judgment and decree dated the 28th February, 1968 of the Patna High Court in Appeal from Appellate Decree No. 1055 of 1962, S.C. Misra and U.P. Singh, for the Appellant in C.A. No. 209/70 and for the Respondent in CA.
No. 2280/70.
Sinha, S.K Sinha and M.L. Chibber for the Appellant in CA.
2280/70 and for the Respondent in C.A. 209 of 1970.
The Judgment of the Court was delivered by MISRA J.
These two connected appeals are directed against a t common judgment dated 28th February, 1968 of the Patna High Court, the first one by certificate and the second by special leave.
421 Bhaiya Rudra Pratap Deo was the holder of an impartible A estate, known as Nagaruntari estate, in the district of Palamau.
The succession to the estate was governed by the rule of lineal primogeniture.
Under the said rule the eldest male member of the eldest line was to succeed to the estate while the junior members of the family were entitled only to maintenance grants subject to resumption on extinction of an heir in the male line of the eldest branch.
It appears that the estate was accorded protection under the Chota Nagpur Encumbered Estates Act, 1876, on the application of Bhaiya Rudra Pratap Deo as per notification dated 17th March 1932 published in the Bihar Gazette dated 23rd March, 1932 and after liquidation of debt it was released from the operation of Chota Nagar Encumbered Estates Act in October 1945.
Eventually the estate vested in the State of Bihar under the Bihar Land Reforms Act, 1950 in pursuance of a notification dated 5th of November, 1951.
Harihar Pratap Deo, who was the younger brother of Bhaiya Rudra Pratap Deo, had died in a state of jointness with his brother Bhaiya Rudra Pratap Deo in 1934 leaving behind his son Lalu Maheshanuj Pratap Deo alias Nila Bacha, and one other step son who also died in 1937 unmarried.
Lalu Maheshanuj Pratap Deo demanded land for khorposh (maintenance) from Bhaiya Rudra Pratap Deo in 1950.
Bhaiya Rudra Pratap Deo executed a deed of maintenance on 14th of April, 1952 in respect of eight h villages in favour of Lalu Maheshanuj Pratap Deo.
A dispute, however, arose between the parties in respect of the plots of village Sigsigi which culminated in a proceeding under section 144 Cr.
The proceedings were, however, later converted into proceedings under section 145 Cr.
P.C. which ended in favour of Lalu Maheshanuj Pratap Deo on 4th of July, 1955.
Bhaiya Rudra Pratap Deo feeling aggrieved by the order filed a suit which has given rise to the present appeals and which was later on numbered as suit No. 16 of 1955, against Lalu Maheshanuj Pratap Deo alias 'Nila Bacha ' in respect of the agricultural plots of village Sigsigi and the grains in the custody and control of the police, Bisrampur, district Palamau.
The case of the plaintiffs as follows: After the vesting of the estate in the State of Bihar the defendant approached him with a request that the plaintiff should give him the villages Bhojpur, Jaungipur, Chitri, Rohila, Bhandar and Khundra but the plaintiff declined to do so as section 12A of the Chota Nagpur Encumbered Estate Act and the provisions of the Bihar Land Reforms Act stood as a bar.
422 The defendant, however, implored and wanted to take a chance and try his luck.
On the beseechment of the defendant the plaintiff allowed him six villages only, namely Bhojpur, Jaungipur Chitri, Rohila, Bhandar and Khundra subject to acceptance of the State of Bihar.
There was neither any proposal for villages Sigsigi and Patihari nor had the plaintiff ever agreed to give these two villages to the defendant.
A formal unstamped and unregistered deed of Khorposh(maintenance) was no doubt created in respect of only six villages on 14th of April, 1952 subject to the approval of the authorities.
The defendant, however, in collusion with the plaintiff 's employees and ex employees and without the knowledge and information of the plaintiff managed to use the plaintiff 's signature and manufactured evidence to show that the two villages Sigsigi and Patihari had also been included in Khorposh grant and included these two villages in the formal deed dated 14th of April, 1952 in collusion with the typist and designing persons by perpetrating fraud on the plaintiff.
When the plaintiff came to know of the fraud and fabrication of the defendant he lodged protest before the authorities and the authorities refused to accept the plea of khorposh and they ordered the villages to be included in the compensation list of the plaintiff and the rent of all the sirjot lands was fixed in favour of the plaintiff.
Thus, no khorposh grant remains even in respect of the six villages and such grants, if any, are void under section 12A of the Chota Nagpur Encumbered Estates Act and the provisions of the Bihar Land Reforms Act.
Even assuming for the sake of argument that the two villages Sigsigi and Patihari were included in the deed dated 14th of April, 1952, the transfer is void ab initio and no title accrued to the defendant on that basis.
At the time of proceedings under section 145 Cr.
P.C. paddy crops grown by the plaintiff were standing and on the petition of the plaintiff the same were harvested by the police.
Subsequent cultivation was also done through the police, Bisarampur and the plaintiff is entitled to all the grains in the custody of the police.
On these allegations the plaintiff sought a declaration that the land in dispute, detailed in Schedule A, situated in village Sigsigi was the khasjot land of the plaintiff, that the defendant had no concern therewith and that he (the plaintiff ) was entitled to the grain or the value thereof as detailed in Schedule B.
The plaintiff also claimed a relief for possession over the disputed plots 423 and the grain or the value thereof.
A relief for mesne profits to be A ascertained in subsequent proceedings was also claimed.
Bhaiya Rudra Pratap Deo, the plaintiff, died during the pendency of the suit and his two sons and four widows got themselves substituted in his place.
His eldest son, Bhaiya Ramanuj Pratap Deo filed a petition before the Trial Court for substitution in place of his deceased father alleging that the Nagaruntari Estate was an impartible estate governed by the rule of lineal primogeniture under which the eldest son alone is entitled to succeed his father.
His prayer was allowed.
Subsequently the second son of Bhaiya Rudra Pratap Deo and his widows filed a petition for being substituted.
The Sub Judge impleaded all these persons provisionally as plaintiffs ordering to strike out an issue as to which of them was or were entitled to the fruits of the litigation, if eventually the court decided the suit as against the defendant.
The conduct of the suit was given to plaintiff No. I under the provisions of rule 11, order 1 C.P.C.
The suit was contested by the defendant on the following grounds amongst others: The Nagaruntari estate was never an impartible estate governed by the rule of lineal primogeniture but in its origin it was a non heritable Ghatwala Jagir and it was subsequently made heritable and raised to the status of a revenue paying estate and thus it became an ordinary joint family property partible amongst the members.
His father died in a state of jointness with Bhaiya Rudra Pratap Deo sometime in 1934 when he was only four years old and he was living under the guardianship of his uncle.
He was made to carry an impression, due to propaganda made by his uncle Bhaiya Rudra Pratap Deo that Nagaruntari estate was an impartible estate and being under this wrong impression he subsequently filed an application against his uncle in 1950 claiming khorposh grant of 22 villages including village Sigsigi from out of Nagaruntria estate and also partition of the self acquired property of his grand father.
That application was, however, rejected.
The Nagaruntari estate later on vested in the State of Bihar under the Bihar Land Reforms Act.
Thereafter Bhaiya Rudra Pratap Deo of his own accord executed a khorposh deed in his favour in respect of eight villages including Sigsigi and got it typed in his house and sent it to him with a direction to take possession of the eight villages and accordingly he took possession of the same.
The defendant denied that he had fraudulently got Sigsigi and Patihari villages inserted in the Khorposh deed or that this deed was illegal.
The defendant 424 claimed that he was a co sharer with the plaintiff and was entitled to remain in possession of all the eight villages covered by the Khorposh deed till partition was made, The Subordinate Judge held that by the khorposh deed Bhaiya Rudra Pratap Deo had in fact given to the defendant in khorposh eight villages including village Sigsigi but the defendant did not acquire any interest in the said land on the basis of the khorposh deed as the same was against the provisions of section 12A of the Chota Nagpur Encumbered Estates Act and the Chota Nagpur Tenancy Act; that Nagaruntari estate was an impartible estate governed by the rule of lineal primogeniture but it ceased to be so after the enforcement of the in June 1956 and since Bhaiya Rudra Pratap Deo died after this Act came into force the succession to the estate would be governed by survivorship as contemplated by section 6 of the .
As such the plaintiffs, as well as the defendant would succeed.
The defendant is thus entitled to remain in possession of the said property as one of the co owners and the plaintiffs could not claim an exclusive khas possession till the matter is decided in a partition suit.
On these findings he dismissed the suit Feeling aggrieved by the decision heirs and legal representatives of Bhaiya Rudra Pratap Deo, the deceased plaintiff, preferred an appeal.
On appeal the District Judge confirmed the findings of the Trial Court.
He, however, held that the grant of khorposh by Rudra Pratap Deo after the release of the estate from the management of the Chota Nagpur Encumbered Estates Act was void under section 12A of the Act as the khorposh grant was not made with the sanction of the Commissioner and also because the possession of the ex proprietor with respect to the Bakasht land became that of a raiyat under the State of Bihar and the raiyati right was not transferable without a registered document.
the possession of the defendant was on the basis of a void document.
The learned Judge further held that the document of khorposh being unregistered was not admissible in evidence but it could be used for a collateral purpose of explaining the nature of possession; that the defendant being a minor member of the family was put in possession of the property covered by it by the holder of the estate and his possession was as khorposh holder (maintenance holder) and not as a trespasser and he was not liable to be evicted.
The Nagaruntari estate was found to be an impartible estate where succession was governed by 425 the rule of lineal primogeniture.
But after the death of Bhaiya A Rudra Pratap Deo section 6 of the. became applicable and the devolution of the property would not be governed by the rule of lineal primogeniture but by the ordinary rule of succession as is provided under the .
It was also held that Rudra Pratap had died in a state of jointness with the defendant and after came into force the Nagaruntari estate became an ordinary joint family property of the parties and that the possession of the defendant was as a co sharer.
On these findings the appeal filed by the plaintiffs was dismissed by the District Judge.
Undaunted, the plaintiffs preferred a Second Appeal in the High Court which was partly allowed inasmuch as the High Court found that the heirs of Rudra Pratap were entitled to get a decree for possession of the suit land jointly with the sole defendant as also for mesne profits for their share, that is, one half in addition to the entire mesne profits to which Rudra Pratap was entitled in his lifetime.
Both the parties have come up in appeal to this Court against the judgment and decree of the High Court to the extent it went against them.
First we take up appeal No. 209 of 1970 filed by Bhaiya Ramanuj Pratap Deo, heir and legal representative of deceased plaintiff.
Mr. S C. Misra assisted by Mr. U.P. Singh raised a number of contentions.
His first contention is that the rule of lineal primogeniture survived even after the enforcement of the .
To appreciate the contention it will be necessary to examine the relevant provisions of the Act.
Section 4(1) (a) of the Act lays down: "4.
(1) Save as otherwise expressly provided in this Act G (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.
" 426 Section 6 of the Act provides: "6.
When a male Hindu dies after the commencement of this Act, having at the time of his death in interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
" A bare perusal of section 4 would indicate that any custom or usage as part of Hindu law in force will cease to have effect after the enforcement of with respect to any matter for which provision is made in the Act.
If rule of lineal primogeniture in Nagaruntari estate is a customary one it will certainly cease to have effect, even though it was part of Hindu law.
Faced with this situation the learned counsel for the appellant invokes section 5 (ii) of the .
In so far as it is material for the present discussion it reads: "5.
This Act shall not apply to: (i) . . . (ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into. or by the commencement of this Act.
" This section protects an estate which descends to a single heir by the terms of any covenant or agreement entered into or by the terms of any enactment in as much as is not applicable to such an estate.
This section stands as an exception to section 4 of the Act referred to above.
It is urged by Shri Misra that the rule of lineal primogeniture in the instant case is a statutory rule and not a customary rule and 427 therefore it is saved by section 5 (ii) of the .
A In support of his contention he placed reliance upon Bengal Regulation 10 of 1800.
Bengal Regulation 10 of 1800 reads as under: (i) By Regulation 11, 1798 the estates of proprietors of land dying intestate are declared liable to be divided among the heirs of the deceased agreeably to the Hindu or Muhamdan laws.
A custom, however, having been found to prevail in the jungle Mahals of Midnapore and other districts by which the succession to the landed estates invariably devolves to a single heir without the division of the property. the Governor General in Council has enacted the following rule to be in force in the Provinces of Bengal, Bihar and Orissa from the date of its promulgation.
Regulation 11, 1798 (2) shall not be considered to supersede or affect any established usage which may have obtained in the jungle Mahals of Midnapore and other districts, by which the succession to landed estates, the proprietor of which may die intestate, has hitherto been considered to devolve to a single heir, to the exclusion of the other heirs of the deceased.
In the Mahals in question the local custom of the country shall be continued in full force as heretofore, and the Courts of Justice be guided by it in the decision of all claims which may come before them to the inheritance of landed property situated in those Mahals.
" The following propositions are clearly deducible from this Regulation: F (a) The Regulation takes note of an earlier Regulation (Regulation No. 11 of 1798) according to which the estate of a proprietor of land dying intestate was to be divided amongst his heirs according to his personal law.
(b) It further notes that a custom had been found to pre vail in certain areas by which land devolved on a single heir.
(c) It then lays down that such a custom would not be deemed to have been superseded by Regulation No. 11 428 of 1798 and that in the said areas such custom shall be rule of decision.
This analysis of the Regulation leads to the further preposition that it did not by its own force declare that any estate would descend to a single heir.
All that it did was to keep alive the custom sanctioning the rule of primogeniture entailing impartibility of the estate.
The rule of custom was thus recognised as such and no estate by the terms of the Regulation itself was made to descend to a single heir.
In this view of the matter clause (ii) of section 5 of the does not cover such a custom.
Alternatively it was argued that even if the rule of lineal primogeniture did not survive after the enforcement of the the suit land will be deemed to be settled with the plaintiff under section 6 of the Bihar Land Reforms Act and the plaintiff became the exclusive owner of the suit land.
Section 6 of the Bihar Land Reforms Act, 1950, insofar as it is material for this case reads: 6.
(1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in 'khas ' possession of an intermediary on the date of , such vesting, including: (a) (i) proprietor 's private lands let out under a lease for a term of years or under a lease from year to year, referred to in Sec.
116 of the Bihar Tenancy Act, 1885 (8 of 1885), (ii) landlord 's privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less, referred to in Sec.
43 of the Chota Nagpur Tenancy Act, 1908 (Ben.
Act 6 of 1908), (b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lease of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and 429 (c) lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover 'khas ' possession thereof; shall subject to the provisions of Sec.
7 A and 7 be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a 'raiyat ' under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.
" This section only contemplates that the land will be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold it as a raiyat under the State having occupancy rights in respect of such land subject to payment of fair and equitable rent.
But if the intermediary was in possession in a representative capacity on behalf of the other coparceners, as a necessary corollary the land will be deemed to be settled with all those persons on whose behalf one particular intermediary was in khas possession.
Consequently if the possession of Bhaiya Rudra Pratap Deo was on behalf of other coparceners the land will be deemed to be settled with all those coparceners and they shall all become raiyats.
It is nobody 's case that there has been any partition between the plaintiff and the defendant.
The joint status of the family continued and, therefore, after the death of Bhaiya Rudra Pratap Deo his interest devolved on other coparceners as well.
F It was next contended for the appellant that the defendant got the land under a khorposh deed which was void ab initio and, therefore, the status of the defendant was that of a trespasser and he was liable to ejectment on the suit of the plaintiff.
According to the appellant the khorposh deed was void for two reasons: firstly because there was no sanction of the Commissioner for the deed as contemplated by section 12 A of the Chota Nagpur Encumbered Estates Act, 1876; secondly because the deed was neither stamped nor registered, In order to appreciate the first reason it is pertinent to read section 12 A insofar as it is material for the purpose of the case: "12 A (1) When the possession and enjoyment of 430 property is restored, under the circumstances mentioned in the first or the third clause of section 12, to the person who was the holder of such property when the application under section 2 was made, such person shall not be competent, without the previous sanction of the Commissioner, (a) to alienate such property, or any part thereof, in any way, or (b) to create any charge thereon extending beyond his lifetime.
(2) . . (3) Every alienation and charge made or attempted in contravention of sub section (I) shall be void.
" Section 12 A would be attracted only when possession and enjoyment of the property is restored under the circumstances mentioned in the first or the third clause of section 12.
It was for the plaintiff to show that the conditions contemplated by section 12 were satisfied, which he has failed to do As regards the second reason, the argument is based on section 17 read with section 49 of the Indian Registration Act.
Section 17 of the Registration Act enumerates the documents requiring registration.
Section 49 of the Registration Act provides that no document required by section 17 or by any provision of the to be registered shall be (a) affect any immovable property comprised therein, (b) . (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.
Khorposh (maintenance) deed is a document which requires registration within the meaning of section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property.
Proviso to section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not required to be effected by registered instrument.
In this view of the legal position the maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession.
431 Admittedly the defendant was a member of a joint Hindu family.
Even in an impartible estate he was entitled to maintenance and the land in dispute had admittedly been given to the defendant by the impartible estate holder.
His possession, therefore, cannot be taken to be the possession of a trespasser and the High Court in our opinion has erred in branding the defendant as a trespasser.
This leads us to the last, but not the least in importance, contention raised on behalf of the appellants.
According to Shri S.C.Misra the original plaintiff being holder of an impartible estate, his estate would go to his successors alone and not to the other members of the family by survivorship.
The learned counsel relied upon the following cases in support of his contention: Rajah Velugoti Kumara Krishna Yachendra Varu & Ors.
vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors., Raja Rama Rao vs Raja of Pittapur, Hargovind Singh vs Collector of Etah, Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur vs Court of Wards.
In Rajah Velugoti Kumara Krishna Yachendra Varu and Ors.
vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors., (supra) the first and the foremost case relied upon, a contention was raised on behalf of the plaintiff that the property of the impartible estate was held in coparcenary as joint family property and became partible amongst the members once it lost its character of impartibility.
In other words the contention was that the junior members had a present interest in the impartible estate and were entitled to a share in the estate once impartibility was removed.
This argument was repelled and this Court observed: "In our opinion there is no justification for this argument.
The law regarding the nature and incidents of impartible estate is now well settled.
Impartility is essentially the creature of custom.
The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth, and therefore, have no right of partition having regard to the very nature of the estate that is impartible.
Secondly, they have 432 no right to inerdict alienation by the head of the family either for necessity or otherwise.
" This Court, however, further exposed the legal position in these words: "To this extent the general law of Mitakshara applicable to joint family property has been modified by custom and an impartible estate, though it may be ancestral joint family estate, is clothed with the incidents of self acquired and separate property to that extent.
The only vesting of the incident of joint family property, which still attaches to the joint family impartible estate is the right of survivorship which, of course, is not inconsistent with the custom of impartibility.
For the purpose of devolution of the property, the property is assumed to be joint family property and the only right which a member of the joint family acquires by birth is to take the property by survivorship but he does not acquire any interest in the property itself.
The right to take by survivorship continues only so long as the joint family does not cease to exist and the only manner by which this right of survivorship could be put an end to is by establishing that the estate ceased to be joint family property for the purpose of succession by proving an intention, express or implied, on behalf of the junior members of the family to renounce or surrender the right to succeed to the estate.
" The observations extracted above are self explanatory and do not support the contention of the appellant, lather they support the defendant respondent.
In Raja Rama Rao vs Raja of Pittapur (supra) it was held: "An impartible Zamindari is the creature of custom; it is of its essence that no coparcenary in it exists.
Apart, therefore, from custom and relationship to the holder the junior members of the family have no right to maintenance out of it.
" In Hargovind Singh vs Collector of Etah (supra) the Allahabad High Court quoted with approval the following observations made by the Privy Council in Baijnath Prasad Singh vs Tej Bali Singh : 433 ".
Zamindari being the ancestral property of the joint family, though impartible, the successor falls to be designated according to the ordinary rule of the Mitakshara law, and that the respondent being the person who in a joint family would, being eldest of the senior branch, be the head of the family is the person designated in this impartible raj to occupy the Gaddi." In Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur vs Court of Wards (supra) it was laid down that an impartible zamindari was not inalienable by will or otherwise by virtue only of its impartibility, and in the absence of proof of some special family custom or tenure attaching to the zamindari and having that effect.
This question, however, need not detain us long as this Court had the occasion to consider the point at great length in Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur and Ors.
vs Shri Pushavathi Visweswar Gajapathi Raj and Ors.
Dealing with the point in question this Court observed as follows: "Since the decision of the Privy Council in Shiba Prasad Singh vs Rani Prayag Kumari Debi it must be taken to be well settled that an estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate.
If the holder has got the estate as an ancestral estate and he has succeeded to it by primogeniture, it will be a part of the joint estate of the undivided Hindu family.
In the illuminating judgment delivered by Sir Dinshah Mulla for the Board, the relevant previous decisions bearing on the subject have been carefully examined and the position of law clearly stated.
In the case of an ordinary joint family property, the members of the family can claim four rights: (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance, and (4) the right of survivorship.
It is obvious that from the very nature of the property which is impartible the first of these rights cannot exist.
The second is also incompatible with the custom of impartibility as was laid down by the Privy Council in the case of Rani Sartaj 434 Kuari vs Deoraj Kuari and the First Pittapur case Venkata Surya vs Court of Wards.
Even the right of maintenance as a matter of right is not applicable as laid down in the Second Pittapur case Rama Rao vs Raja of Pittapur.
The 4th right viz., the right of survivorship, however, still remains and it is by reference to this right that the property, though impartible, has, in the eyes of law, to be regarded as joint family property.
The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes successionis.
Unlike spes successionis, the right of survivorship can be renounced or surrendered.
It also follows from the decision in Shiba Prasad Singh 's case that unless the power is excluded by statute or custom, the holder of customary impartible estate, by a declaration of his intention can incorporate with the estate self acquired immovable property and thereupon, the property accrues to the estate and is impressed with all its incidents, including a custom of descent by primogeniture.
It would be noticed that the effect of incorporation in such cases is the reverse of the effect of blending self acquired property with the joint family property.
In the latter category of cases where a person acquires separate property and blends it with the property of the joint family of which he is a coparcener, the separate property loses its character as a separate acquisition and merges in the joint family property, with the result that devolution in respect of that property is then governed by survivorship and not by succession.
On the other hand, if the holder of an impartible estate acquires property and incorporates it with the impartible estate he makes it a part of the impartible estate with the result that the acquisition ceases to be partible and becomes impartible.
" Prior to the decision of the Privy Council in the case of Rani Sartaj Kuari vs Deoraj Kuari (supra), it was always assumed that a holder of an ancestral impartible estate cannot transfer or 435 mortgage the said estate beyond his own life time so as to bind the coparceners, except, of course, for purposes beneficial to the family and not to himself alone.
In 1888, however, this view was shaken by the decision of the Privy Council in Rani Sartaj Kuari 's case (supra).
In that case, the holder of the estate had gifted 17 of the villages of his estate to his junior wife and the validity of this gift was questioned by his son.
The son 's plea, however, failed because the Privy Council held that "if, as their Lordships are of opinion, the eldest son, where the Mitakshara law prevails and there is the custom of primogeniture, does not become a co sharer with his father in the estate, the inalienability of the estate depends upon custom, which must be proved, or it may be in some cases, upon the nature of the tenure".
This decision was again affirmed by the Privy Council in the First Pittapur case (supra).
As a result of these decisions it must be taken to be settled that a holder of an impartible estate can alienate the estate by gift inter vivos, or even by will, though the family is undivided; the only limitation on this power would flow from a family custom to the contrary or from the condition of the tenure which has the same effect.
Again in Chinnnthayal alias Veeralakshmi vs Kulasekara Pandiya Naicker & Anr.
, it was held by this Court that to establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the estate.
In each case it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant 's branch in the estate was determined so that it became the separate property of the last holder 's branch.
The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an intention to impress upon the zamindari the character of separate property.
In Pushavathi Viziaram Gajapathi Raj Manne 's cases (supra) this Court reiterated the same legal position.
For the foregoing discussion this appeal must fail.
This leads us to the other appeal filed by the defendant.
The contention of the learned counsel for the defendant appellant in 436 this case is that the possession of the appellant was not as a trespasser but he was a maintenance holder on the khorposh grant (maintenance) given by the impartible estate holder.
The High Court, therefore, erred in law in passing a decree for possession and mesne profits against the defendant appellant.
It was further contended that the Nagaruntari estate was a partible estate.
As regards the first contention it is open to a co sharer to remain in possession of the joint property and the proper remedy for the plaintiff in such case is to file a suit for partition where the equities of the parties would be adjusted.
The learned counsel for the plaintiff respondent on the other hand urged that the defendant 's possession was only as a trespasser.
In support of his contention he placed reliance on Collector of Bombay vs Municipal Corporation of the City of Bombay & Ors.
The majority took the view that: "The position of the Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market.
Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the Corporation took possession of the land under the invalid grant.
This possession had continued openly, as of right and uninterruptedly for over 70 years and the Corporation had acquired the limited title to it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purpose of a market in terms of the Government Resolution of 1865".
In the instant case the defendant being a member of a joint Hindu family was entitled to maintenance from the impartible estate holder.
The impartible estate holder executed a khorposh deed in favour of the defendant.
If the document in question was invalid for want of registration or stamps the same can be looked into for collateral purpose to find out the nature of possession of the defendant appellant.
This being the position in the instant case, the case cited above is not of much help to the plaintiff respondent.
In 437 that case the sole basis of title itself was invalid.
A perusal of the plaint also indicates that the plaintiff had given some grant to the defendant by way of maintenance and a formal deed of maintenance was executed.
The execution of the document is not denied by the plaintiff.
All that he says is that village Sigsigi was not included in the deed.
We find considerable force in the contention raised on behalf of the defendant appellant that the High Court has decree in passing the decree for possession and mesne profits against the defendant.
The proper remedy for the plaintiff in this case was to file a regular suit for partition in respect of all the properties and not a suit for possession of plots of one village and mesne profits.
The second contention that disputed estate was a partible estate has been raised only to be repelled.
The overwhelming evidence on the record leaves no room for doubt that the disputed estate was an impartible estate till the death of the original plaintiff in 1957 In the result the first appeal No. 209 of 1970 filed by the plaintiff is dismissed while the other appeal filed by the defendant, No. 2280 of 1970, is allowed and the decree passed by the High Court is set aside and the decree of the Trial Court as affirmed by the first appellate court, is restored.
In the circumstances of the case we direct the parties to bear their own costs.
V.D.K. C.A. 209/70 dismissed 2280/70 allowed.

summary:
Bhaiya Rudra Pratap Deo was the holder of an impartible estate, known as Nagaruntari estate, in the district of Palamau.
The succession to the estate was governed by the rule of lineal primogeniture.
Under the said rule the eldest male member of the eldest line was to succeed to the estate while the junior members were entitled only to maintenance grants subject to resumption on extinction of the male line of the eldest branch.
Rudra Pratap Deo Singh had a younger brother Harihar Pratap Deo who died in a state of jointness with his brother Rudra Pratap Deo in 1934 leaving behind his son Lalu Maheshanuj Pratap Deo alias Nila Bacha, and one other step son who also died in 1937 unmarried.
Bhaiya Rudra Pratap Deo executed a deed of maintenance (Khorposh) on 14th April, 1952 in respect of eight villages.
A dispute arose between the parties in respect of the agricultural plots of village Sigsigi.
The proceedings under section 145 Crl.
P.C. ended in favour of Nila Bacha.
Bhaiya Rudra Pratap Deo, therefore, filed a civil suit No. 16 of 1955, on the grounds that (a) a fraud was committed by including two villages, namely, Sigsigi and Patihari in the formal deed of khorposh dated 14th April, 1952 and (b) that F the khorposh grants are void under section 12A of the Chota Nagpur Encumbered Estates Act and the provisions of the Bihar Land Reforms Act, 1950 and therefore, no title accrued to the defendant on that basis.
The suit was contested by the defendant on the grounds amongst others: The Nagaruntari estate was never an impartible estate governed by the rule of primogeniture, but in its origin it was a non heritable Ghatwala Jagir and it was subsequently made heritable and raised to the status of a revenue paying estate and thus it became an ordinary joint family property partible amongst the members; there was no fraud committed by any one; and with the enforcement of the , being a co sharer with the plaintiff, he was entitled to remain in possession of all the eight villages covered by the khorposh deed till partition was made.
The learned Subordinate Judge held that by the khorposh deed the defendant was given all the eight villages, but he did not acquire any interest in the 418 said land as the deed was against the provisions of section 12A of the Chota Nagpur Encumbered Estates Act and the Chota Nagpur Tenancy Act; that the Nagaruntari Estate was an impartible estate governed by the rule of primogeniture but it ceased to be so after the enforcement of the Hinda Succession Act, 1956 and since Bhaiya Rudra Pratap Deo died, during the pendency of the suit and after this Act had come into force, the succession would be governed by survivor ship and as such the legal representatives of the plaintiff as well as the defendant would succeed.
The first appellate court held that: (a) in as much as the khorposh grant was not made with the sanction of the Commissioner, the grant was void under section 12A of the Chota Nagpur Encumbered Estates Act; and (b) because the possession of the ex proprietor with respect to the Bakasht land became that of raiyat under the State of Bihar and raiyati right was not transferable without a registered document, the possession of the defendant was on the basis of a void agreement; and (c) that after the death of Bhaiya Rudra ' Pratap Deo, section 6 of the became applicable and both appellants and the defendants were entitled to succeed as co sharers.
The second appeal by the plaintiffs was partly allowed inasmuch as the High Court found that the heirs of Rudra Pratap Deo were entitled to get a decree for possession of the suit land jointly with the sole defendant as also for mense profits for their share, i.e. One half in addition to the entire mense profits to which Rudra Pratap Deo was entitled in his life time.
Both the parties have come up in appeal to this Court against the judgment and decree of the High Court to the extent it went against them.
Dismissing the plaintiff 's appeal and allowing that of the defendant, the Court ^ HELD: 1.
A bare perusal of Section 4 of the indicates That any custom or usage as part of Hindu law in force will cease to have effect after the enforcement of with respect to any matter for which provision is made in the Act.
If rule of lineal primogeniture in Nagaruntari estate is a customary one it will certainly cease to have effect, even though it was part of Hindu law.
[426 D.E] 2.
Section S(ii) of the protects an estate which descends to a single heir by the terms of any covenant or agreement entered into or by the terms of any enactment inasmuch as is not applicable to such an estate.
Section 5(ii) stands as an exception to section 4 of the Act.
[426 G H] The rule of lineal primogeniture in the instant case, is not a statutory rule but a customary rule and therefore, it is not saved by section 5(ii) of the .
[426 H,427 A] 3.
Section 6 of the Bihar Land Reforms Act only contemplates that the land will be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold it as a raiyat under the state having occupancy rights in respect of such land subject to payment of fair and equitable rent.
But if the intermediary was in possession in a representative capacity on behalf of the other coparceners as a necessary corollary 419 the land will be deemed to be settled with all those persons on whose behalf A one particular intermediary was in khas possession.
Consequently if the possession of Bhaiya Rudra Pratap Deo was on behalf of other coparceners the land will be deemed to be settled with all those coparceners and they shall all become raiyats.
Here, the joint status of the family continued and therefore, after the death of Bhaiya Rudra Pratap Deo, his interest developed on other coparceners as well.
[429 C F] 4: 1.
Admittedly the defendant was a member of a joint Hindu family.
Even in an impartible estate he was entitled to maintenance and the land in dispute had admittedly been given to the defendants by the impartible estate holders.
This possession therefore, cannot be taken the possession of a tresspasser.
[431 A] 4: 2.
Section 12A of the Chota Nagpur Encumbered Estates Act, 1876 would be attracted only when possession and enjoyment of the property is restored under the circumstances mentioned in the first or the third clause of section 12.
The onus to prove that the conditions contemplated by section 12 were satisfied lay on the plaintiff, which he failed to do.
[430 D E] 4: 3.
The maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession.
Khorposh (maintenance) deed is a document which requires registration within the meaning of section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property.
Proviso to section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not registered to be effected by registered instrument.
[430F H] 5 (a) A holder of an impartible estate can alienate the estate by gift intervivos or even by will, though the family is undivided, the only limitation on this power would flow from a family custom to the contrary or from the condition of the tenure which has the same effect.
Therefore, it is not correct to say that the impartible estate would go to holder s successors alone and not to the other members or the family by survivorship.
[431 B C, 435 C D] (b) It must be taken to be well settled that the estate which is impartible by custom cannot be said to be the separate or exclusive property of the holder of the estate.
If the holder has got the estate as an ancestral estate and he has succeeded by primogeniture, it will be a part of the joint estate of the undivided family.
[433 D E] In the case of an ordinary joint family property the members of the family can claim four rights: (1) the right to partition, (2) the right to restrain alienation by the head of the family except for necessity, (3) the right to maintenance, and (4) the right of survivorship.
It is obvious that from the very nature of the property which is impartible the first three rights cannot exist.
The fourth right viz., the right of survivorship, however, still remains and it is by reference to this right that the property, though impartible, has in the eyes of law, to be regarded as joint family property.
The right of survivorship which can be claim 420 ed by the members of the undivided family which owns the impartible estate should not be confused with mere spec successionis.
Unlike spec successionis the right of survivorship can be renounced or surrendered.
[433 G H, 434 A B] Rajah Velugoti Kumara Krishna Yachendra Varu and Ors.
vs Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors ; Raja Rama Rao vs Raja of Pittapur, [1918] L.R. 45 I A. 148; Hargovind Singh vs Collector of Etah, A I R. 1937 All 377 and Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur vs Court of Wards, [1899] L.R. 26 I.A. 83, discussed and distinguished.
Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur and ors.
vs Shri Pushavathi Visweswar Gajapathi Raj and ors.
; , applied.
Chinnathayal alias Veeralakshmi vs Kulasekara Pandiya Naicker and Anr. ; , referred to.
The overwhelming evidence on the record, in the instant case, categorically proves: (a) that the disputed estate was an impartible estate till the death of the original plaintiff in 1957; and (b) it is open to a co sharer to remain in possession of the joint property and the proper remedy for the plaintiff in such case is to file a suit for partition where the equities of the parties would be adjusted and not a suit for possession of plots of one village and for mesne profits.
[436 B, 437 B D] Collector of Bombay vs Municipal Corporation of the City of Bombay and Ors. ; , held inapplicable.


judgement:
N: Criminal Appeal No. 701 of 1980.
Appeal by special leave from the Judgment and order dated the 5th March, 1980 of the Delhi High Court in Criminal Revision No. 335 of 1974.
B.P. Maheshwari for the Appellants.
M.C. Bhandari, Mrs. Madhhu Mull Chandani and R.B. Datar for the Respondents.
F.S. Nariman, Parveen Kumar Jain, Kapil Sibbal and Anil Kumar Sharma for Respondents.
This appeal by special leave is directed against a judgment dated March 5, 1980 of the Delhi High Court quashing the proceedings taken against respondents Nos. 1 to S and arises in the following circumstances.
On March 25, 1974, one Shri M.M. Gupta, Food Inspector, Municipal Corporation of Delhi visited premises No. 5171, Basant Road, Delhi where Shri Madan Lal had kept for sale 'Morton Toffees '.
The said Inspector after purchasing the sample of the article sent it to the Public Analyst who opined that the said sample did not conform to the standards prescribed for toffees.
The toffees were manufactured by M/s. Upper Ganges Sugar Mills.
Respondent No. 1 (Rain Kishan Rohtagi) was the Manager of the company and Respondent Nos.
2 to 5 were the Directors of the Company, including the company also.
A complaint was filed before the Metropolitan Magistrate who summoned all the respondents for being tried for violating the provisions of the Prevention of Food Adulteration Act (hereinafter referred to as the 'Acts).
The said complaint was filed by the Assistant Municipal Prosecutor in the court of Metropolitan Magistrate, Delhi against the accused for having committed offences under sections 7/16 of the Act.
The only point canvassed before us was that on the allegations made in the complaint, a clear case was made out against all the 887 respondents and the High Court ought not to have quashed the proceedings on the ground that the complaint did not disclose any offence.
Before going through the relevant part of the complaint, it mag be necessary to say a few words about the law on the subject.
After the coming into force of the Code of Criminal Procedure, B 1973 (hereinafter referred to as the 'present Code '), there was a serious divergence of judicial opinion on the question as to whether where a power is exercised under section 397 of the present Code, the High Court could exercise those very powers under section 482 of the present Code.
It is true that section 397 (2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, enquiry or other proceedings.
The matter is, however, no longer res integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye vs State of Maharashtra(1) where this Court pointed out that section 482 of the present Code had a different parameter and was a provision independent of section 397(2).
This Court further held that while section 397(2) applied to the exercise y of revisional powers of the High Court, section 482 regulated the .
inherent powers of the court to pass orders necessary in order to prevent the abuse of the process of the court.
In this connection, Untwalia, J. speaking for the Court observed as follows: "On a plain reading of section 482, however, it would follow that nothing in the Code, which would include sub section (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court".
But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers .
But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court.
But such cases would be few and far between.
The High Court must exercise the inherent power very sparingly.
" 888 It may be noticed that section 482 of the present Code is the ad verbatim copy of section 561A of the old Code.
This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused.
It is not merely a revisional power meant to be exercised against the orders passed by subordinate courts.
It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate courts.
Thus, the scope, ambit and range of section 561A (which is now section 482) is quite different from the powers conferred by the present Code under the provisions of section 397.
It may be that in some cases there may be overlapping but such cases would be few and far between.
It is well settled that the inherent powers under section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute.
Further, the power being an extraordinary one, it has to be exercised sparingly.
If these considerations are kept in mind, there will be no inconsistency between sections 482 and 397(2) of the present Code.
The limits of the power under section 482 were clearly defined by this Court in Raj Kapoor and Ors.
vs State and Ors.(l) where Krishna Iyer J. Observed as follows: "Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances.
Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code." Another important consideration which is to be kept in mind is as to when the High Court acting under the provisions of section 482 should exercise the inherent power in so far as quashing of criminal q proceedings are concerned.
This matter was gone into in greater detail in Smt.
Nagawwa vs Veeranna Shivalingappa Konjalji and Ors.(2) where the scope of sections 202 and 204 of the present Code was consider ed and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows: 889 "Thus, it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; (3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.
The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash Proceedings.
" Same view was taken in a later decision of this Court in Sharda Prasad Sinha vs State of Bihar(l) where Bhagwati, J. speaking for the Court observed as follows: "It is, now settled law that where the allegations set out in the complaint or the charge sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence." 890 It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted.
In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting any thing, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under section 482 of the present Code.
In the instant cases the argument of the appellant before us is that taking the complaint as a whole, it cannot be said that no offence is made out or that the facts mentioned in the complaint do not constitute any offence against the respondents or some of them.
On the other hand, the counsel for the respondents submitted that even taking the allegations of the complaint ex facie no case for trial has been made out at all.
Before going to the complaint, we might state that it is common ground that the complaint clearly contains the allegations regarding the visit of the Inspector to the shop of respondent No. 6 (Madan Lal) and that the sample taken by him, which was sent to the Public Analyst, was manufactured by Upper Ganges Sugar Mills, Daryagang, Delhi having its registered office at Calcutta and that the Public Analyst found the samples to be adulterated.
There is no dispute regarding these facts.
The only point on which the contro versy centres is as to whether or not on the allegations, the Manager as also the other respondents I to 5 committed any offence.
The main clause of the complaint which is the subject matter of the dispute is clause No. S which may be extracted thus: "5.
That the accused No. 3 is the Manager, of accused No. 2 and accused No. 4 to 7 are the Directors of accused No. 2 and as such they were incharge of and responsible for the conduct of business of accused No. 2 at the time of a sampling.
" According to this clause, accused No. 3 (Ram Kishan) who is respondent No. I in this appeal and accused Nos. 4 7 who are respondent Nos. 2 to 4, were the Directors of the company, respondent No. 5.
So far as the Manager, respondent No. 1, is concerned it was not and could not be reasonably argued that no case is made out against him because from the very nature of his 891 duties, it is manifest that he must be in the knowledge about the affairs of the sale and manufacture of the disputed sample.
It was, however, contended that there is no allegation whatsoever against the Directors, respondent Nos. 2 to 4.
Reliance has been placed on the words 'as such ' in order to argue that because the complaint does not attribute any criminal responsibility to accused Nos. 4 to 7 except that they were incharge of and responsible for the conduct of the business of the company.
It is true that there is no clear averment of the fact that the Directors were really incharge of the manufacture and responsible for the conduct of business but the words 'as such ' indicate that the complainant has merely presumed that the Directors of the company must be guilty because they are holding a particular office.
This argument found favour with the High Court which quashed the proceedings against the Directors as also against the Manager, respondent No. 1.
So far as the Manager is concerned, we are satisfied that from the very nature of his duties it can be safely inferred that he would undoubtedly be vicariously liable for the offence; vicarious liability being an incident of an offence under the Act.
So far as the Directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complainant, that there is any act committed by the Directors from which a reasonable inference can be drawn that they could also be vicariously liable.
In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the Directors (accused Nos 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed.
We, however, do not agree that even accused No. 3, respondent No. 1, who is Manager of the Company and therefore directly incharge of its affairs, could fall in the same category as the Directors.
Hence, we would set aside that part of the judgment of the High Court which quashes the proceedings against the Manager, respondent No. I (Ram Kishan Rohtagi).
Although we uphold the order of the High Court we would like to state that there are ample provisions in the Code of Criminal 892 Procedure, 1973 in which the Court can take cognizance against persons who have not been made accused and try them in the same manner along with the other accused.
In the old Code, section 351 contained a lacuna in the mode of taking cognizance if a new person was to be added as an accused.
1 he Law Commission in its 41st Report (para 24.81) adverted to this aspect of the law and section 319 of the present Code gave full effect to the recommendation of the Law Commission by removing the lacuna which was found to exist in section 351 of the old Code.
Section 319 as incorporated in the present Code may be extracted thus: "319.
Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the enquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance 893 of the offence upon which the inquiry or trial was commenced.
" This provision gives ample powers to any court to take cognizance and add any person not being an accused before it and try him alongwith the other accused.
This provision was also the subject matter of a decision by this Court in Joginder Singh and Anr.
vs State of Punjab and Anr.(1) where Tulzapurkar, J., speaking for the Court observed thus: "A plain reading of section 319 (1), which occurs in chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other accused.
" In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused.
But, we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.
More than this we would not like to say anything further at this stage.
We leave the entire matter to the discretion of the court concerned so that it may act according to law.
We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to S will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it.
894 For these reasons, therefore, we allow this appeal only to the extent that the order of the High Court quashing the proceedings against the Manager (Rohtagi), respondent No. 1, is hereby set aside and that of the Metropolitan Magistrate is restored.
As regards the other respondents (Directors) the order of the High Court stands and the appeal in respect of these respondents only will stand dismissed.
An attested copy of this judgment be placed on the file of criminal appeal No. 749 of 1980.
H.L.C. Appeal partly allowed.

dataset_name: IN-Abs

summary:
A Food Inspector of the Municipal Corporation visited tho premises of a shopkeeper and purchased a sample of toffees which, when analysed by Public Analyst, was found not to conform to the prescribed standards.
In clause No. S of the complaint filed before the Magistrate it was stated: "That the accused No. 3 is tho Manager of accused No. 2 and accused No. 4 to 7 are the Directors of accused No. 2 and as such they were incharge of and responsible for the conduct of business of accused No. 2 at the time of sampling." Accused No. 2 was the Company which manufactured the toffees, accused No. 3 was its Manager and accused Nos. 4 to 7 were its Directors (respondents l to 5 here).
The Magistrate passed an order summoning all the accused for being tried for violation of sections 7/16 of the Prevention of Food Adulteration Act and that order was assailed before the High Court.
It was argued before the High Court that the complaint did not attribute any criminal responsibility to the Directors inasmuch as there was no clear averment of the fact that the Directors were really incharge of the manufacture of toffees and were responsible for the conduct of business and that the words 'as such ' in clause No. S of the complaint indicated that the complainant had merely presumed that the Directors of the Company must be guilty because they were holding a particular office.
The High Court accepted the argument and quashed the proceedings against the Directors as well as the Manager of the Company.
In appeal, it was contended on behalf.
Of the appellant that on the allegations made in the complaint, a clear case had been made out against all the respondents and the High Court ought not to have quashed the proceedings on the ground that the complaint did not disclose any offence.
Counsel for respondents contended that even taking the allegations of the complaint ex facie no case for trial had been made out.
885 Upholding the order of the High Court in respect of quashing of proceedings against the Directors and allowing the appeal in respect of quashing of proceedings against the Manager, ^ HELD: Where the allegations set out in the complaint do not constitute any offence it is competent to the High Court exercising its inherent jurisdiction under 8.
482 of the Code of Criminal Procedure, 1973 to quash the order passed by the Magistrate taking cognizance of the offence.
It is true that section 397(2) bars the jurisdiction of the court in respect of interlocutory orders.
But section 482 confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the court has been seriously abused.
It is not merely a rovisional power meant to be exercised against the orders passed by subordinate courts.
Nothing in section 397(2) limits or affects the inherent power under section 482.
The scope, ambit and range of the power under section 482 are quite different from those of the power conferred under section 397.
It may be that in some cases there may be overlapping but such cases would be few and far between.
It is well settled that the inherent powers under section 482 can be exercised only when no other remedy is available to the litigant and Dot where a specific remedy is provided by the statute.
It is clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted.
The test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court would be justified in quashing the proceedings in the exercise of its powers under section 482.
[889 A B, G; 887 C; 888 A B; 887 G H; 888 C D; 890 A B] Madhu Limaye vs State of Maharashtra [1978] 1 S.C.R. 749; Ra; Kapoor and Ors.
vs State and Ors.
, [1980] 1 S.C.C. 43; Smt.
Nagavva vs Veeranna Shivalingappa Konjalgi and Ors., ; and Sharda Prasad Sinha vs State of Bihar.
[9771] 2 S.C.R. 357, referred to.
In the instant case, so far as the Manager of the Company was concerned, from the very nature of his duties it could be safely inferred that he would be vicariously liable for the offence as he must have been in the knowledge of the manufacture and sale of the disputed sample.
So far as the Directors of the Company were concerned, there was nothing to show, apart from the presumption drawn by the complainant, that there was any act committed by them from which a reasonable inference could be drawn to the effect that they were also vicariously liable and the High Court was right in holding that no case had been made out ex facie on the allegations made in the complaint.
{891 D; 891 A; 891 E F] 2.
The mere fact that the proceedings have been quashed against the Directors will not prevent the court from exercising its discretion under section 319 of the Code if it is fully satisfied that a case for taking cognizance against them is made out on the additional evidence led before it.
Section 319 gives ample powers to any court to take cognizance and add any person not being an accused before it and try him along with the other accused.
However, this being an extraordinary power conferred on the court, it should be used very sparingly and only if compelling reasons exist for doing so.
[893 G; 893 G; 893 F] Joginder Singh and Anr.
vs State of Punjab and Anr.
; , referred to. 886