judgement:
Civil Appeal No. 2020 (NT) of 1974 From the Judgment and Order dated 14.8.1973 of the Calcutta High Court in Appeal No. 317 of 1970 T.A. Ramachandran, J. Ramamurthi and D.N. Gupta for the Appellant.
C.M. Lodha and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by certificate granted by the High Court of Calcutta is directed against a judgment of the Division Bench of the High Court confirming on appeal the dismissal of the appellant 's writ petition.
985 The appellant, Brooke Bond & Company Ltd., now known as Brooke Bond Leibig Limited, is a sterling company carrying on business in tea with its Head Office in the United Kingdom.
The appellant has invested in the shares of other tea companies in different parts of the world, and has a hundred per cent share holding in an Indian subsidiary, Brooke Bond (India) Limited.
The appellant is assessed under the Indian Income Tax Act, and the relevant financial year is the previous year in relation to the corresponding assessment year.
For the assessment year 1955 56 the appellant was assessed on its total world income by an assessment order dated July 16, 1957 on the basis of provisional figures of its business loss including depreciation, and its income from dividends.
On the basis of those provisional figures it was assessed to a net loss of Rs.31,33,647.
As its Indian income exceeded its income outside India it was assessed as a resident.
Meanwhile, on March 28, 1957 the appellant had already been assessed for the subsequent assessment year 1956 57 in the status of a non resident, and its income of Rs.53,11,958 from dividends was assessed under the head 'Income from Other Sources '.
It is obvious that the loss determined for the assessment year 1955 56 could not be carried forward and set off against the income for the assessment year 1956 57, as the latter assessment was made subsequent to the former.
On February 12, 1958 the appellant preferred two revisions applications, one each for the assessment years 1955 56 and 1956 57, before the Commissioner of Income tax under sub section
(2) of section 33A of the Indian Income Tax Act, 1922.
In the revision application for the assessment year 1955 56 the appellant claimed that the quantum of loss determined for that year having been based on provisional figures should now be revised on the basis of the final figures certified by an Inspector of Taxes in the United Kingdom.
The appellant claimed also that the loss should be ascertained for the purpose of carrying it forward, and further that the loss should be bifurcated between an unabsorbed depreciation of Rs.40,27,853 and other loss.
In the revision application for the assessment year 1956 57 the appellant claimed a set off of the loss determined for the assessment year 1955 56 against the income of the assessment year 1956 57 on the ground that the shares held by it in tea companies constituted its trading assets and the dividend income accruing therefrom should be regarded as income from business.
It mentioned that it carried on business in tea in the United Kingdom and the investments were made in the usual course of 986 its tea business in companies also engaged in the tea business exclusively.
The revision petitions remained pending for eight years.
Meanwhile the appellant 's assessment for the assessment year 1957 58 was completed in November 1957 as a non resident, determining an income of Rs.51,85,836 received by way of dividends on its share holdings.
An appeal was taken to the Appellate Assistant Commissioner of Income Tax claiming that the loss for the assessment year 1955 56 should be carried forward and set off against the income for the assessment year 1957 58 under sub section
(2) of section 24 because both the loss and the income arose from business carried on by the appellant.
By his order dated August 14, 1958 the Appellant Assistant Commissioner dismissed the appeal holding that there would be no loss if the loss for the assessment year 1955 56 was set off against the income for the assessment year 1956 57, and that the loss could not be legally set off directly in the assessment year 1957 58.
The appellant appealed to the Income tax Appellate Tribunal and on July 1, 1966 the Appellate Tribunal set aside the order of the Appellate Assistant Commissioner and directed the Appellate Assistant Commissioner to dispose of the appeal afresh after determining whether the appellant was entitled to set off a business loss arising outside the taxable territories for the assessment year 1955 56 against the dividend income arising in the taxable territories for the assessment year 1957 58.
The Commissioner of Income Tax applied for a reference to the High Court but the Appellate Tribunal rejected the application on December 1, 1966.
On December 5, 1966 the Commissioner of Income Tax disposed of the revision applications filed by the appellant.
The revision application pertaining to the assessment year 1955 56 was allowed subject to the claim being verified in regard to the figures and calculation of depreciation by the Income Tax Officer.
The revision application pertaining to the assessment year 1956 57, however, was rejected with the observation that the dividend earned by the appellant from investments in shares of companies carrying on the tea business could not be said to be a part of the appellant 's business because the investments were not incidental to the appellant 's business activities and were not held as trading assets.
It was also stated that the companies from which the dividend was earned were not companies of which the appellant was managing agent so as to require the making of such investments for the purposes of its business as managing agents.
The Commissioner also rejected the contention of the appellant that a set off should be allowed to the extent of the unabsorbed depreciation brought forward 987 from the assessment year 1955 56 against the business income derived during the assessment year 1956 57.
The Commissioner observed that there was no business income in the assessment year 1956 57.
Thereafter the appellant filed a writ petition in the High Court of Calcutta against the disposal of his revision application for the assessment year 1956 57, but on September 22, 1969 the learned Single Judge dismissed the writ petition.
An appeal filed by the appellant was dismissed by the Division Bench of the High Court on August 14, 1973.
The Division Bench adverted to the finding of the Commissioner of Income Tax in the appellant 's revision application relating to the assessment year 1956 57 that the material placed before him did not show that the dividend earned by the appellant from its investment in the shares of different companies could be regarded as part of the appellant 's business income.
He had found that the investments in shares were not incidental to the appellant 's business activities and they were not held as trading assets.
The Division Bench held that no error of law in the Commissioner 's order had been established and consequently there was no case for interference with the rejection of the appellant 's claim for carrying forward the losses arising from its business in the assessment year 1955 56 against the dividend income for the assessment year 1956 57.
On the other contention raised by the appellant, the claim to carry forward the depreciation allowance pertaining to the business activities of the assessment year 1955 56 for deduction in the assessment proceedings of the assessment year 1956 57 the Division Bench appeared to be in favour of the appellant, but it declined to express any final opinion on the point.
The judgment of the Division Bench is under appeal before us.
At the outset learned counsel for the appellant stated before us that he would not press this appeal if we clarify that the Appellate Assistant Commissioner can proceed in the appeal relating to the assessment year 1957 58 pending before him without being influenced by the observations of the Commissioner of Income Tax and the High Court in the case relating to the assessment year 1956 57 on the aspect of carry forward of loss under sub section
(2) of section 24, and that if such clarification is not possible then we should, in this appeal, confine ourselves to the case relating to the assessment year 1956 57.
There was considerable debate on the question whether the 988 dividend income received by the appellant from its share holdings in different companies engaged in the tea business could be regarded as business income.
It is a cardinal principle of the law relating to income tax that income tax is a single charge on the total income of an assessee.
For the purpose of computation the statute recognises different classes of income which it classifies under different heads of income.
For each head of income the statute has provided the mode of computing the quantum of such income.
The mode of computation varies with the nature of the class of such income, for the deductions permissible under the law in computing the income under each head bear a particular relevance to the nature of the income.
The statute operates on the principle that it is the net income under each head which should be considered as a component of the total income.
The statute permits specified deductions from the gross receipt in order to compute the net income.
The net income under the different heads is then pooled together to constitute the total income.
The process of computation at this stage takes in the provisions relating to the carry forward and setting off of losses and of unabsorbed depreciation.
On the conclusion of the entire process of assessment what emerges is the figure of taxable income, the quantum of income which is assessed to tax.
Ordinarily when income pertains to a certain head, the source of such income is peculiar to that head, but it is not unusual that commercial considerations may properly describe the source differently.
For instance, a banking concern may hold securities in the course of its business.
The securities constitute its trading assets and income from them would in the commercial sense be regarded as business income.
However, for the purposes of computation under the income tax law the income from such securities would be computed not under the head 'Income from Business ' but under the head 'Interest on Securities '.
In United Commercial Bank Ltd., vs Commissioner of Income tax, , this Court pointed out that business income was broken up under different heads only for the purpose of computation of the total income, and that by such break up the income did not cease to be the income of the business.
The principle was followed by this Court in Commissioner of Income tax, Bombay City vs Chugandas and Co., ; and it was reiterated that business income was broken up under different heads under the Income Tax Act only for the purpose of computation of the total income, and that by breaking up the income did not cease to be the income of the business.
It was said: 989 "The heads described in section 6 and further elaborated for the purpose of computation of income in sections 7 to 10 and 12, 12A, 12AA and 12B are intended merely to indicate the classes of income: the heads do not exhaustively delimit sources from which income arises," The point was elaborated by the Court in Commissioner of Income tax, Andhra Pradesh vs Cocanada Radhaswami Bank Ltd., , where the Court was called upon to consider whether the securities owned by the assessee formed part of the trading assets of his business, and income therefrom could be described as income from business, and the Court reaffirmed that section 6 of the Indian Income Tax Act 1922, which classified the taxable income under different heads made such classification only for the purpose of computation of the net income of the assessee and "though for the purpose of computation of the income, interest on securities is separately classified, income by way of interest from securities does not cease to be part of the income from business if the securities are part of the trading assets.
Whether a particular income is part of the income from a business falls to be decided not on the basis of the provisions of section 6 but on commercial principles . . .
If it was the income of the business, section 24(2) of the Act was immediately attracted.
If the income from the securities was the income from its business, the loss could, in terms of that section, be set off against that income.
" Accordingly, the mere circumstance that the appellant showed the dividend income under the head 'Income from Other Sources ' in its returns cannot in law decide the nature of the dividend income.
It must be determined from the evidence whether having regard to the true nature and character of the income it could be described as income from business, even though it is liable to fall for computation under another head.
The principle was again applied in O.RM.M. SP.
Firm vs Commissioner of Income tax, Madras , 410.
The position on the law is clear.
But is the appellant in the present case entitled to the relief claimed by it? The appellant placed material before the Commissioner of Income tax showing that it held shares in companies carrying on the tea business 990 and that in India it enjoyed a hundred per cent share holding in the Indian subsidiary.
But in order that the share holdings in tea commpanies should be regarded as the business assets of the appellant there must be material evidence indicating that the ownership of the shareholdings is necessarily incidental to the business of tea carried on by the appellant or that the share holdings are held as business assets.
The Commissioner of Income Tax was unable to draw any conclusion in favour of the appellant in this regard, and the appellant failed to convince the High Court also.
We have given our careful consideration to the matter and except for the Indian subsidiary there is nothing to show that the investments of the appellant in the other tea companies were intended to bring, or in fact brought about, some advantage or benefit to the business carried on by the appellant.
The mere fact that the share holdings related to the tea companies is not sufficient by itself to support the submission that they were acquired to safeguard the appellant 's interest in the tea business carried on by it.
The matter is pending in appeal relating to the assessment year 1957 58 before the Appellate Assistant Commissioner and it will be open to the appellant to place further material before the Appellate Assistant Commissioner to enable him to come to an adequate and satisfactory decision.
The appellant may have a sufficient case specially in regard to the share holding possessed by it in its Indian subsidiary, but we refrain from expressing any opinion on the point and we leave it to the appellant to satisfy the Appellate Assistant Commissioner that the appellants share holdings in the Indian subsidiary and the other tea companies enures to the benefit of the business carried on by it.
An attempt was made by learned counsel for the appellant to show that the Commissioner of Income Tax had conceded in an earlier proceeding that the dividend income was income from business.
Our attention has been invited to a recital in the order of the Appellate Tribunal relating to the assessment year 1957 58 and to what has been stated by the Commissioner in his reference application against that order.
We are not satisfied from the material placed before us that the Revenue can be said to have admitted that the dividend income received by the appellant from its share holdings in other companies can be regarded as part of the appellant 's income from business.
Consequently we are unable to sustain the appellant 's challenge to the view expressed by the Division Bench of the High Court in regard to the appellant 's claim that the dividend income must be regarded as income from business.
991 The next point raised by the appellant is that the loss should be carried forward under sub section
(2) of section 24 from the assessment year 1955 56 to the assessment year 1956 57 and it is not necessary that the business carried on in the assessment year 1956 57 should be the same as that carried on in the assessment year 1955 56.
This point must also fail because it proceeds on the assumption that the shares held by the appellant can be regarded as its trading assets.
The final contention of the appellant relates to the carry forward of unabsorbed depreciation under sub section
(2) of section 10.
The Division Bench appeared to be of the tentative view that the appellant was entitled to the carry forward claimed by it, but it did not express any final opinion as it had decided to decline relief to the appellant on the ground that the assessment for the assessment year 1956 57 had already been closed by the Revenue when the assessment for the assessment year 1955 56 was being made and the grant of relief would have its consequence on the assessment for the assessment year 1957 58, in respect of which an appeal was pending.
The writ petition was directed against the order of the Commissioner of Income Tax made upon the revision application filed by the appellant in respect of the assessment year 1956 57, and the High Court could have directed the Commissioner to grant appropriate relief for the assessment year 1956 57.
The Commissioner was not concerned with the proceeding relating to the assessment year 1957 58.
That was a matter pending in appeal before the Appellate Assistant Commissioner.
The point could have been considered by the Commissioner in the revision application for the assessment year 1956 57.
Merely because relief given by the Commissioner in that regard in the proceeding for the assessment year 1956 57 could have its consequence upon the proceeding for the assessment year 1957 58 then pending in appeal before the Assistant Appellate Commissioner, could not bring the case within proviso (b) to sub section
(1) of section 33A of the Indian Income Tax Act.
It may be that the same point was the subject of the appeal, but the point agitated before the Commissioner was with reference to the assessment year 1957 58.
It could not debar the Commissioner from considering the same point in relation to the assessment year 1956 57.
We need express no opinion at this stage on the view tentatively expressed by the Division Bench of the High Court that the appellant 's claim to the carry forward of unabsorbed depreciation from the assessment year 1955 56 to the assessment year 1956 57 is vaild or not.
As we have noted, the view taken by the High Court was tentative only and not its final opinion.
Indeed, no submission was made on behalf of the Revenue before us on the point.
992 We shall concern ourselves merely with the correctness of the Division Bench refusing to grant relief after it reached the tentative finding that there was merit in the appellant 's claim to the carry forward of unabsorbed depreciation.
In our opinion, the order of the Commissioner disposing of the revision application for the assessment year 1956 57 should have been set aside by the Division Bench and the Commissioner should have been directed to consider the claim on its merits.
We make that direction now.
At the same time, we make it clear that it will be open to the Revenue to contend on the merits that the appellant is not entitled to the carry forward of unabsorbed depreciation.
The appeal is allowed in so far only that the order of the Division Bench and of the learned Single Judge as well as the order of the Commissioner of Income Tax on the revision application for the assessment year 1956 57 are set aside in regard to the claim of the appellant to the carry forward of unabsorbed depreciation, and the Commissioner is directed to dispose of the revision application in respect of that claim afresh.
As to the rest of the reliefs the appeal is dismissed.
In the circumstances there is no order as to costs.
A.P.J. Appeal allowed in part.

summary:
The appellant, a sterling company carrying on business in tea with its Head office in the United Kingdom, invested in the shares of other tea companies in different parts of the world, and had a hundred per cent share holding in an Indian subsidiary.
The appellant was assessed under the Indian Income Tax Act 1922.
For the assessment year 1955 56 the appellant was assessed on its total world income on the basis of provisional figures of its business loss including depreciation, and its income from individuals.
As its Indian income exceeded its income outside India it was assessed as a resident.
Meanwhile the appellant had already been assessed for the subsequent assessment year 1956 57 in the status of a 'non resident ' and its income from dividends was assessed under the head 'Income from other Sources '.
The loss determined for the assessment year 1955 56 could not be carried forward and set off against the income for the assessment year 1956 57, as the latter assessment was made subsequent to the farmer.
The appellant preferred two revision applications, one each for the assessment years 1955 56 and 1956 57 under sub section (2) of section 33A.
In the revision application for the assessment year 1955 56, the appellant claimed that the quantum of loss determined for that year having been based on provisional figures should be revised on the basis of final figures certified by an Inspector of Taxes in the United Kingdom, that the loss should be ascertained for the purpose of carrying it forward, and that the loss should be bifurcated between an unabsorbed deprecia 981 tion and other loss.
In the revision application for the assessment year 1956 57, the appellant claimed a set off of the loss determined for the assessment year 1955 56 against the income of the assessment year 1956 57 on the ground that the shares held by it in different companies constituted its trading assets and the dividend income accruing therefrom should be regarded as income from accruing therefrom should be regarded as income from business.
During the pendency of these revision petitions the assessment for the assessment year 1957 58 was completed as a non resident, and the income was determined as receipt by way of dividends on its share holdings.
In the appeal to the Appellate Assistant Commissioner, it was claimed that the loss for the assessment year 1955 56 should be carried forward and set off against the income of the assessment year 1957 58 under sub section
(2) of section 24 because both the losses and the income arose from business carried on by the appellant, but the appeal was dismissed holding that there would be no loss if the loss for the assessment year 1955 56 was set off against the income for the assessment year 1956 57 and that the loss could not be legally set off directly in the assessment year 1957 58.
In further appeal, the Income Tax Appellate Tribunal set aside the order of the Appellate Assistant Commissioner and directed it to dispose of the appeal afresh after determining whether the appellant was entitled to set off a business loss arising outside the taxable territories for the assessment year 1955 56 against the dividend income arising in the taxable territories for the assessment year 1957 58.
The reference to the High Court was declined by the Appellate Tribunal.
The revision application pertaining to the assessment year 1955 56 was allowed subject to the claim being verified in regard to the figures and calculation of depreciation by the Income Tax Officer.
The revision application pertaining to the assessment year 1956 57, however, was rejected holding that the dividends earned by the appellant from the investments in shares of companies carrying on the tea business could not be said to be a part of the appellant 's business because the investments were not incidental to the appellant 's business activities and were not held as trading assets, that the companies from which the dividend was earned were not companies of which the appellant was managing agent, that a set off cannot be allowed to the extent of the 982 unabsorbed depreciation brought forward from the assessment year 1955 56 against the business income derived during the assessment year 1956 57, and that there was no business income in the assessment year 1956 57.
A Petition under article 226 filed by the appellant against the disposal of his revision application for the assessment year 1956 57 was dismissed by a Single Judge, and the appeal against that order as well as dismissed.
In the appeal to this Court on behalf of the appellant it was contended: (1) that if this Court clarified that the Appellate Assistant Commissioner can proceed in the appeal relating to the assessment year 1957 58 pending before him without being influenced by the observations of the Commissioner of Income Tax and the High Court in the case relating to the assessment year 1956 57 on the aspect of carry forward of loss under sub section
(2) of section 24, the appeal would not be pursued, and that if such clarification is not possible then this Court should confine itself to the case relating to the assessment year 1956 57; (2) that the Commissioner of Income Tax had conceded in an earlier proceeding that the dividend income was income from business; (3) that the loss should be carried forward under sub section
(2) of section 24 from the assessment year 1955 56, to the assessment year 1956 57 and it is not necessary that the business carried on in the assessment year 1956 57 should be the same as that carried on in the assessment year 1955 56, and (4) that the claim of the appellant to carry forward of unabsorbed depreciation under sub section
(2) of section 10 should be allowed.
Partly allowing the Appeal, ^ HELD: 1.
The order of the Division Bench and of the Single Judge as well as the order of the Commissioner of Income Tax on the revision application for the assessment year 1956 57 are set aside in regard to the claim of the appellant to the carry forward of unabsorbed depreciation and the Commissioner is directed to dispose of the revision application afresh.
As to the rest of the reliefs the appeal is dismissed.
[992C D] 2.
Income tax is a single charge on the total income of an assessee.
For the purpose of computation the statute recognises different classes of income which it classifies under different heads of income.
For each head of income the statute has provided the mode of computing the quantum of such income.
The mode of computation varies with 983 the nature of class of such income, for the deductions permissible under the law in computing the income under each head bear a particular relevance to the nature of the income.
[988B C] 3.
The statute operates on the principle that it is the net income under each head which should be considered as a component of the total income.
The statute permits specified deductions from the gross receipt in order to compute the net income.
The net income under the different heads is then pooled together to constitute the total income.
The process of computation at this stage takes in the provisions relating to the carry forward and setting off of losses and of unabsorbed depreciation.
On the conclusion of the entire process of assessment what emerges is the figure of taxable income, the quantum of income which is assessed to tax.
[988C E] 4.
Ordinarily when income pertains to a certain head, the source of such income is peculiar to that head, but it is not unusual that commercial considerations may properly describe the source differently.
For instance, a banking concern may hold securities in the course of its business.
The securities constitute its trading assets and income from them would in the commercial sense be regarded as business income.
However, for the purposes of computation under the income tax, the income from such securities would be computed not under the head 'Income from Business ' but under the head 'Interest on Securities '.
[988E G] 5(i) Business income is broken up under different heads only for the purpose of computation of the total income, and that by such breakup the income does not cease to be the income of the business.
[988G] 5(ii) Section 6 of the Indian Income Tax Act 1922, which classified the taxable income under different heads made such classification only for the purpose of computation of the net income of the assessee.
[989C] United Commercial Bank Ltd. vs Commissioner of Income Tax, ; Commissioner of Income Tax, Bombay City vs Chugandas and Co., ; ; Commissioner of Income tax, Andhra Pradesh vs Cocandada Radhaswami Band Ltd., and O.RM.M.SP.SV.
Firm vs Commissioner of Income tax, Madras, , 410 followed.
The mere circumstance that the appellant showed the dividend income under the head 'Income from other Sources ' in its returns can 984 not in law decide the nature of the dividend income.
It must be determined from the evidence whether having regard to the true nature and character of the income it could be described as income from business, even though it is liable to fall for computation under another head.
[989F G] 7.
In the instant case, the appellant placed material before the Commissioner of Income tax showing that it held shares in companies carrying on the tea business, and that in India it enjoyed a hundred per cent share holding in the Indian subsidiary.
But in order that the share holdings in tea companies should be regarded as the business assets of the appellant there must be material evidence indicating that the ownership of the share holdings is necessarily incidental to the business of tea carried on by the appellant or that the share holdings are held as business assets.
[989H; 990A B] 8.
From the material placed before the Court, the Revenue cannot be said to have admitted that the dividend income received by the appellant from its share holdings in other companies can be regarded as part of the appellant 's income from business.
[990F G] 9.
The loss cannot be carried forward under sub section
(2) of section 24 from the assessment year 1955 56 to the assessment year 1956 57 because the shares held by the appellant cannot be regarded as its trading assets.
[991A B]


judgement:
ivil Appeal Nos.
1856 61 of 1974 etc.
From the Judgment and order dated 16.1.1974 of the Andhra Pradesh High Court in Case Referred No 2 of 1977 V.S. Desai, Ms. A. Subhashini and B.B. Ahuja for the Appellant.
Y.Ratnakar and D.N. Misra for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
These appeals have been preferred by the Revenue against the common judgment of the High Court of Andhra Pradesh answering the following questions in favour of the assessee: "(1) Whether, on the facts and in the circumstances of the case, the incomes arising from the Reserve Fund and the Expenses Account of the Nizam 's Family Trust Deed dated s 10.5.1950 can be aggregated in a single assessment for each of the assessment years 1960 61 to 1965 66? (2) If the answer to the above question is in the affirmative, whether the assessments made under section 148 of the Act for the assessment years 1960 61 and 1961 62 were legal and valid?" By a Deed of Trust dated May 10, 1950 the Nizam of Hyderabad created a Family Trust.
A corpus of nine crores in Government securities was transferred to the trustees under that Deed.
The corpus was notionally divided into 175 equal units.
Five units were to constitute a fund called the 'Reserve Fund ', and 3 1/2 units were to constitute the 'Family Trust Expenses Account".
The remaining 166 1/2 units were allotted to the relatives mentioned in the Schedule in the manner provided therein, the number of units allocated to each individual relative being specified there.
Two clauses of the Trust Deed hold the centre of the stage in 976 these appeals~. Clause 6 creates a Reserve Fund comprising five equal units of the corpus of the Trust Fund.
The trustees hold the Reserve Fund upon trust to apply the income or corpus thereof for any special, unusual, unforeseen or emergency expenses for the benefit of the members of the Settlor 's family specified in the Schedule.
Additionally, if the income of the Family Trust Expenses Account is insufficiently meet the charges of collection of the income of the Trust Fund and the remuneration of the trustees and of the Committee of Management and the other costs, charged, expenses and outgoings relating to the Trust, the trustees are enjoined to make good such deficit out of the income or corpus of the Reserve Fund, and for that purpose they may transfer to the Family Trust Expenses Account such sums as may be required.
It is further provided that on the death of any of the Settlor 's relatives specified in the Schedule the trustees must set apart out of the Reserve Fund a certain portion calculated in accordance with the directions contained in the clause and to add such portion to the units of the corpus of the Trust Fund allocated to the member specified in the Schedule and to amalgamate the same, and to hold it upon the same trusts as those hereinafter declared and contained of and concerning the unit or units of the corpus of the Trust Fund allocated to such relative of the settlor as aforesaid. ' Clause 7 directs the trustees to hold 3 1/2 equal units of the corpus of the Trust Fund allocated to the Family Trust Expenses Account, and to apply the net income of that Fund to the charges for the collection of the income of the Trust Fund and the remuneration of the trustees and of the members of the Committee of Management and to other costs, charges, expenses and outgoings relating to the Trust.
There is a further provision.
After all the other Trusts constituted under the Deed have been fully administered and carried out and the corpuses of all such units have been handed over and transferred to the ultimate respective beneficiaries the trustees are enjoined to transfer and hand over the 3 1/2 units comprising the Family Trust Expenses Account to the Settlor 's successor who may be describe as the Nizam of by any other title or rank or designation, and failing such person, to the eldest male descendant in the direct male line of succession of the Settlor accordmg to the rule of primogeniture.
For the assessment year 1959 60 and the assessment years prior thereto the incomes accruing to the Reserve Fund and the Family Trust Expenses Account were aggregated in a single assessment made on the trustees of the Nizam 's Family Trust.
But thereafter the asses 977 see 's appeals having been allowed by the Appellate Assistant Commissioner of Income tax against the assessments for the years 1955 56 to 1959 60, the incomes of the two Funds were separately assessed for the assessment years 1960 61 and 1961 62, the assessee being described in the one case as the trustees of the Nizam 's Family Trust Reserve Fund, and in the other as the trustees of the Nizam 's Family Trust Expenses Account.
Subsequently, the Income tax officer being of opinion that there was only one settlement under the Trust Deed, reopened the assessments for the assessment years 1960 61 and 1961 62 under clause (a) of section 147 of the Income Tax Act, 1961 in order to assess the trustees on the combined income of the Reserve Fund and the Family Trust Expenses Account.
Following the same line, he made separate original assessments for the assessment years 1962 63 to 1965 66.
On appeal by the assessee, the Appellate Assistant Commissioner relied on an order of the Appellate Tribunal in the Wealth Tax Appeals pertaining to the same trust arrangements and cancelled the assessments for all the years.
The Revenue appealed to the Income Tax Appellate Tribunal, but the view taken by the Appellate Assistant Commissioner was upheld by the Appellate Tribunal and the appeals were dismissed.
Upon that, the Revenue obtained a reference to the High Court of Andhra Pradesh on the two questions of law set forth earlier for the assessment years 1960 61 to 1965 66.
By its judgment dated January 16, 1974 the High Court answered both the questions in the negative.
And hence these appeals.
For the subsequent assessment years 1967 68 to 1970 71 the High Court adopted the same view in regard to the first question.
The second question did not arise for those assessment years.
Special Leave Petition Nos. 4171 to 4174 of 1978 have been filed against the judgment of the High Court in those cases.
We grant special leave, and the consequent appeals are also being disposed of by this judgment.
The primary question in these appeals is whether the incomes arising from the Reserve Fund and the Family Trust Expenses Account of the Nizam 's Family Trust can be assessed separately or must be aggregated in a single assessment.
It seems to us clear that by the Deed of Trust dated May 10, 1950 the Nizam created a number of separate and distinct Trusts.
They were created for specific and distinct purposes, and although the corpus of the Trust Fund vested in the same trustees, the trustees nonetheless held distinct and severable portions of the corpus of the Trust Fund 978 under those separate trusts.
That this construction of the document accords with the intention of the Settlor is borne out by the provisions of sub clause (4) of clause 3 of the Trust Deed, which specifically provides that on the death of the Settlor the corpus of the Trust Fund was to be divided or to be treated as notionally divided into the 175 equal units mentioned therein for being allocated to the Settlor 's relatives specified in the Schedule, 166 1/2 units being apportioned between the relatives in the proportion set out, five equal units to constitute the Reserve Fund and the last 3 1/2 equal units to constitute the Family Trust Expenses Account.
There is no doubt that separate funds were thus created, even though the division of the original Trust Fund may have been notional.
There is also no denying that it is open to a Settlor to constitute two or more distinct trusts by a single document.
See Commissioner of Income tax, Bombay vs Manilal Dhanji, , 886.
The entire position becomes absolutely clear if regard is had to clause 10 of the Trust Deed which permits the trustees to have separate Trust Deeds made and executed in respect of the different funds carved out of the 175 equal units of the corpus of the Trust Fund.
It is also apparent that the objects for which the trustees held the Reserve Fund and the Family Trust Expenses Account are clearly demarcated and there is no overlapping or duplication.
There is also no intermingling of the Funds.
It is true that if there is a deficit in the Family Trust Expenses Account, a definite portion of the income or corpus of the Reserve Fund has to be transferred to the Family Trust Expenses Account.
But the two Funds, remain distinct from each other at all times, The transfer of a portion from one to the other cannot lead to a confusion in the separate identity of the two Trusts.
A further indication evidencing the creation of two distinct Trusts is the completely different manner of disposal of the corpus of the two Funds.
As regards the Reserve Fund we have seen that on the death of any of the Settlor 's relatives a proportionate share of the corpus of the Reserve Fund must be added to the unit or units of the corpus of the Trust Fund allocated to such members, and the amounts so amalgamated are to be applied in accordance with the terms of the Trust Deed mentioned earlier.
In the case of the Family Trust Expenses Account, the corpus of that Fund has to be ultimately handed over to the Settlor 's successor to the dignity of Nizam and failing him to his eldest male descendant in the direct male line of succession in accordance with the rule of primogeniture.
We agree with the High Court that the Settlor intended to create 979 separate Trusts in respect of the Reserve Fund and the Family Trust Expenses Account, and that the respective incomes arising from the corpus of those Trusts cannot be aggregated in one single assessment but must be assessed separately.
The first question in these Appeals is therefore answered in the negative, in favour of the assessee and against the Revenue.
Inasmuch as the answer to the first question is in the negative, the second question does not arise and we need not consider that question in these Appeals.
The Appeals are dismissed with costs.
M.L.A. Appeals dismissed.

dataset_name: IN-Abs

summary:
By a Deed of Trust dated May 10, 1950, the Nizam of Hyderabad created a Family Trust.
A corpus of nine crores in Government securities was transferred lo the trustees under that Deed, which was notionally divided into 175 equal units, 5 units to constitute a fund called the 'Reserve Fund ', 31/2 units to constitute the 'Family Trust Expenses Account ' and the remaining 116 1/2 units were allotted to the relatives mentioned in the Schedule in the manner provided therein.
The Trust Deed provided: (1) that the income or corpus of the Reserve Fund shall be applied for any special, unusual, unforeseen or emergency expenses for the benefit of the members of the settlor 's family specified in the Schedule; (2) that if there was a deficit in the Family Trust Expenses Account, a definite proportion of the income or corpus of the Preserve Fund had to be transferred to the Family Trust Expenses Account; (3) that the net income of the Family Trust Expenses Account shall be applied to the charges for the collection of the income of the Trust Fund and the remuneration of the trustees and of the members of the Committee of Management and to other costs, charges, expenses and outgoings relating to the members, (4) that on the death of any of the settlor 's, relatives, a proportionate share of the corpus of the Reserve Fund must be added to the unit or units of the corpus of the Trust Fund allocated to such member, and the amounts so amalgama ted are to be applied in accordance with the terms of the trust deed; and (5) that the corpus of the Family Trust Expenses Account has to be ultimately handed over to the Settlor 's successor to the dignity of Nizam and falling him to his eldest male descendant in the direct male line of succession in accordance with the rule of primogeniture.
974 The income of the two Funds were separately assessed for the assessment years 1960 61 and 1961 62.
Subsequently, the Income tax officer, being of opinion that there was only one settlement under the Trust Deed, reopened the assessments for the assessment years 1960 61 and 1961 62 under clause(a) of section 147 of the Income Tax Act, 1961 and assessed the trustees for each of the assessment years on the combined income of the Reserve Fund and the Family Trust Expenses Account.
Following the same line, separate original assessments for the assessment years 1962 63 to 1965 66 were also made.
On appeal by the asses see, the Appellate Assistant Commissioner cancelled the assessments for all the years.
The Income Tax Appellate Tribunal and the High Court confirmed the order of the Appellate Assistant Commissioner.
In the appeals by the Revenue to this Court, on the question whether the incomes arising from the Reserve Fund and the Expenses Account of the Nizam 's Family Trust Deed can be aggregated in a single assessment for each of the assessment years 1960 61 to 1965 66. ^ HELD: 1.
The High Court was right that the Settlor intended to create separate Trusts in respect of the Reserve Fund and the Family Trust Expenses Account, and that the respective incomes arising from the corpus of those Trusts cannot be aggregated in one single assessment but must be assessed separately.
[979A B] 2.
It is open to a Settlor to constitute two or more distinct trusts by a single document.
[978C] In the instant case, there is no doubt that separate funds were created, even though the division of the original Trust Fund may have been notional.
The objects for which the trustees held the Reserve Fund and the Family Trust Expenses Account are clearly demarcated and there is no overlapping or duplication.
There is also no intermingling of the Funds.
The transfer of a portion from one to the other cannot lead to a confusion in the separate identity of the two Trusts.
[978B E] 3.
Although the corpus of the Trust Fund vested in the same trustees, the trustees nonetheless held distinct and severable portions of the corpus of the Trust Fund under those separate trusts.
That this construction of the document accords with the intention of the Settlor is borne out by the provisions of sub clause (4) of clause 3 of the Trust Deed, which specifically provides that on the death of the Settlor the corpus of the Trust Fund was to be divided or to be created as notionally 975 divided into the 175 equal units mentioned therein for being allocated to the Settlor 's relatives specified in the Schedule.
[977G H; 978A B]


judgement:
Civil Appeal No. 755 of 1971 From the Judgment and Order dated 21.12.1970 of the Allahabad High Court in Second Appeal No. 2757 of 1963.
D.P. Singh, R.P. Singh and D.S. Mehra for the Appellant.
L.P. Vats and S.P. Panday for the Respondent.
The Judgment of the Court was delivered by B.C. Ray, J.
This appeal by special leave is against the judgment and decree dated 21st December, 1970 of the Allahabad High Court in Second Appeal No. 2757 of 1963 allowing the appeal on setting aside the judgment and decree of the court of appeal below and dismissing the plaintiff 's suit.
The plaintiff Hari Chand @ Harish Chandra instituted suit No.610 of 1961 in Court of the Munsif, Agra for recovery of possession of the disputed land shown in red colour attached to the plan marked with letters GCDH on demolition of the unauthorised constructions made thereon by the defendant alleging inter alia that the plaintiff became owner in possession of a piece of land measuring 1580 Sq.
situated at Sultanpura, Agra Cantt.
designated as No. 164A, and 1032 shown in the plan attached thereto with letters A, B, C, D, E, F on the basis of a registered sale deed dated 9th May, 1961, from Ramji Lal owner of the said property.
It has been further alleged that the plaintiff started to build a compound wall over and around his land after his purchase.
The defendant taking undue advantage of the plaintiff 's temporary absence from Agra, wrongfully encroached and trespassed along the whole Northern length of the plaintiff 's land measuring North to South about 4 ft. and East to West about 62 1/2 ft.
by hurriedly raising a low mud wall and extending his khaprail thatch over it.
It has been shown in the attached plain in red colour with letters G, C, D & H.
It has been further alleged that inspite of plaintiff 's objection against the said wrongful encroachment and trespass the defendant did not pay any heed to it.
It has also been pleaded that the cause of action of the suit primarily arose on or about 22nd May, 1961 when the defendant made the encroachment and wrongful constructions over the plaintiff 's land as well as it arose on 4.6.1961 when the defendant failed to remove the encroachment inspite of the plaintiff 's notice.
Hence this suit has been instituted.
The defendant filed a written statement denying that the plaintiff was owner of the land shown by GCDH in the plan attached to the plaint.
The defendant also denied the correctness of the sale deed dated 9.5.1961.
It has been stated that the land marked GCDH as shown in red colour in the plan attached to the plaint never belonged to the plaintiff.
The wall and khaprail belonging to the contesting defendant have been existing at their present site since time immemorial.
The plaintiff 's allegation that the contesting defendant has constructed the wall and extended the khaprail (tiled roof) in May 1961 is totally wrong and baseless.
It has been further stated that he did not make any new construction.
The defendant also stated that the plaintiff illegally tried to remove his kutcha wall and the tiled roof situate at the place marked G, C, D & H. Accordingly, on 25.5.1961 the contesting defendant gave a notice to the plaintiff mentioning the actual facts to which he gave a wrong reply.
The plaintiff 's allegation that the wall and tiled roof of the defendant encroach upon the plaintiff 's land is totally wrong, false and baseless.
It has been stated that the wall and tiled roof belongs to the contesting defendant and the eaves of tiled roof have been at the same place since time immemoral where they are at present.
He has been regularly and openly enjoying all the proprietary rights and rights of adverse possession in respect of the land aforesaid.
Under Sec.
142 of the Limitation Act, the contesting defendant became the absolute owner of the land in dispute on the 1033 basis of the adverse possession as well and he has a right of easement in the form of flowing of water from the tiled roof.
The kuchha house No.164 belonging to the contesting defendant has been existing at its site exactly in the same condition in which it was built by the defendant 's grandfather.
The eaves have been dropped at that very place and the khaprail has also been existing at that very place.
The contesting defendant did not make any new construction as alleged by plaintiff in the plaint.
Property Nos. 163 and 164 consisted of kuchha houses.
The contesting defendant demolished the Property No. 163 which had come to his share and got in pucca built.
Property No. 164 is a khaprail in which the contesting defendant is living and was living at the time of partition.
The defendant therefore, states that the suit is liable to be dismissed.
Third Additional Munsif, Agra after hearing the parties and also on a consideration and appraisement of the evidence on record held that the plaintiff was the owner of the property described in the plaint by the boundaries but the defendant has not trespassed over his land and has not constructed a new wall or khaprail.
It has been further held that the plaintiff failed to prove the case of trespass and encroachment.
The suit was accordingly dismissed with costs.
Against this judgment and decree the plaintiff preferred an appeal being numbered as Civil Appeal 220 of 1963 in the court of District Judge, Agra.
This appeal was allowed by the IInd Addl.
Civil Judge, Agra holding that the defendant failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit, even though it was not proved that the khaprail had been raised in May 1961 as was the case of the plaintiff, but they are recent construction.
It was further held that even if the defendant 's wall and khaprail are old ones he is not entitled to maintain them after the same was allotted to Ramji Lal in the deed of partition dated 3.3.1958.
It has been further held that the plaintiff is entitled to possession after demolition of the construction on the portion found encroached by defendant.
The judgment and degree of the court below was set aside.
Against this judgment and decree Second Appeal No. 2757 of 1963 was filed before the High Court at Allahabad.
This appeal was dismissed by judgment and order dated 8.9.1963 and the judgment and decree of the lower appellate court was affirmed.
A review application No. 269 of 1969 for the review of the said 1034 judgment was filed before the High Court on the ground that the alleged partition deed dated 17th March, 1963 was not in fact a deed of partition but merely an agreement between the parties to partition the property and there was no actual partition by metes and bounds.
The defendent continued to remain co owner and co sharer of the property in suit.
The decree passed in the said suit is neither possible nor permissible under the law.
This review application was allowed by judgment and order dated December 9, 1970 setting aside the judgment dated 8th September, 1969 and directing the appeal to be listed for further hearing.
Accordingly on 21.12.1970 the appeal was heard by the learned judge who held that the mere allotment of shares by the said deed of partition did not amount to partition by metes and bounds.
The appeal of the defendant was allowed and the judgment and decree of the lower appellate court were set aside and the suit was dismissed.
Against this judgment and decree the instant appeal on special leave was filed by the plaintiff.
The learned counsel for the plaintiff tried to urge before us that the land in dispute marked as GCDH in the plan was allotted to the share of the plaintiff 's vendor Ramji Lal in accordance with the deed of partition (Ext.
3/1) and shown in map (Ext. 3/2) effected between the parties on 17.3.1958 and this has been mentioned in the sale deed (Ext. 1) executed by Ramji Lal, one of the co sharers of the property.
It has, therefore, been submitted that the judgment and decree of the High Court is not in accordance with law and it should be set aside.
This contention advanced on behalf of the plaintiff cannot be sustained in as much as there is no pleading in the plaint that the disputed property shown in red colour and marked as GCDH fell within the allotment of the plaintiff on the basis of the deed of partition executed in 1958 between the plaintiff 's vendor Ramji Lal and his two other brothers Daulat Ram and Bishambhar Nath.
It was also been not pleaded that the disputed mud wall and the Khaprail over it were all along in possession of his vendor before the sale of the said land measuring 1580 Sq.
ft appertaining to Property No. 164A.
The plaintiff 's case is that he got possession of the land he purchased including the suit land on May 9, 1961 and the defendant illegally trespassed on the said portion of land marked in red colour in the plan attached to the plaint and hurriedly constructed a low mud wall and extended his khaprail thatch over it on May 22, 1961 and so the suit for recovery of possession of this land on demolition of the unauthorised construction put up by the defendant was brought.
There is no pleading regarding the partition of the Property No. 164 between 1035 Ramji Lal and his two brothers nor there is any pleading to the effect that the disputed mud wall with the khaprail on it was ever in possession of his vendor Ramji Lal before the sale of the land in question in favour of the plaintiff.
On the other hand, the defendant strongly and categorically stated in his written statement that the mud wall along with khaprail were in existence there for a long time and he was living in the said khaprail to the knowledge of the plaintiff 's vendor.
He also denied that he made any new construction of the wall on 22nd May, 1961 as alleged by the plaintiff.
He also stated that the wall and the tiled roof belonged to the defendant and the existence of the tiled roof had been at the same place in the same condition for a long time long before.
the partition deed made in 1958.
The defendant also stated in his written statement that more than twenty years before private parition took place amongst the defendant and his brothers Bish ambar Lal and Ramji Lal.
Property No. 163 and 164 had come to his share.
He demolished the Property No. 163, and he made pucca construction therein.
Property No. 164 is khaprail wherein the contesting defendant is living and was also living at the time of partition.
The plaintiff has examined three witnesses including himself and his vendor Ramji Lal.
P.W. 1 Ramji Lal stated in his deposition that the portion shown in red in plan No. 36/4 Ka came to his share and defendant Daulat Ram was never in possession of this red portion after partition.
It was also his evidence that at the time of sale, wall belonging to Daulat Ram did not exist over the portion showed in red colour.
In cross examination he said that there was a tiled shed towards the north of the land in dispute.
Daulat Ram used to live therein.
All these three portions had old tiles.
There was a chhappar over the portion shown in red.
Tiled roof was made after the fire accident.
It happened about 28 years back.
The land in dispute has been affected by salt and the adjoining kuchha walls have also been affected by salt.
P.W. 2 Harish Chandra, the plaintiff, stated in his evidence that he was not present at the time encroachment was made by constructing a wall.
Some persons told him about the extension of the wall.
On crossexamination he stated that pucca rooms belonging to Daulat Ram stand at No. 163.
He cannot say if they have been in existence 15 20 years.
It is the evidence of defendant Daulat Ram, D.W. 1, that the wall in dispute has been in its place since the time he attained the age of discretion.
There has been tiled roof for the last about 28 years back.
Before that there was a thatched shed.
It is also his evidence that his mother effected partition about 28 years.
The wall in dispute was in existence when this partition was effected.
It has been existing 1036 in the same condition since then.
It is also his evidence that his mother got the partition effected 28 years back.
He also stated in crossexamination that he did not affix his thumb impression on the plan prepared at the time the partition deed was executed.
No measurements were done at the time the plan was prepared.
D.W. 2 Khunni Lal a retired overseer stated in cross examination that he had given his opinion that the wall in dispute belonged to Daulat Ram and that the flow of its water on the southern side was reasonable.
On a consideration of these evidences it is quite clear that the disputed kachha wall and the khaprail over it is not a new construction, but existed for over 28 years and the defendant has been living therein as has been deposed to by Ramji Lal vendor of the plaintiff who admitted in his evidence that the land in dispute and the adjoining kachha walls had been affected by salt and the chhappar over the portion shown in red was tiled roof constructed about 28 years back.
This is also supported by the evidence of the defendant, D.W. 1, that the wall in dispute was in existence when the partition was effected i.e., 28 years before.
On a consideration of these evidences the Trial Court rightly held that the defendant had not trespassed over the land in question nor he had constructed a new wall or khaprail.
The trial court also considered the report 57C by the court Amin and held that the wall in question was not a recent construction but it appeared 25 30 years old in its present condition as evident from the said report.
The suit was therefore dismissed.
The lower appellate court merely considered the partition deed and map Exts.
3/1 and 3/2 respectively and held that the disputed property fell to the share of the plaintiff 's vendor and the correctness of the partition map was not challenged in the written statement.
The court of appeal below also referred to Amin 's map 47 A which showed the encroached portion in red colour as falling within the share of plaintiff 's vendor, and held that the defendant encroached on this portion of land marked in red colour, without at all considering the clear evidence of the defendant himself that the wall and the khaprail in question existed for the last 28 years and the defendant has been living there all along.
P.W. 1 Ramji Lal himself also admitted that the wall existed for about 28 years as stated by the defendant and the kachha walls and the khaprail has been effected by salt.
The lower appellate court though held that P.W. 1 Ramji Lal admitted in cross examination that towards the north of the land in dispute was the khaprail covered room of Daulat Ram in which Daulat Ram lived, but this does not mean that the wall in dispute exists for the last any certain number of years, although it can be said that it is not a 1037 recent construction.
Without considering the deposition of defendant No. 1 as well as the report of the Amin 57 C the IInd Addl.
Civil Judge, Agra wrongly held that the defendant failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit.
The Civil Judge further held on surmises as "may be that the wall and khaprail have not been raised in May, 1961 as is the plaintiff 's case, but they are recent constructions.
" This decision of the court of appeal below is wholly incorrect being contrary to the evidences on record.
On a consideration of all the evidences on record it is clearly established that the alleged encroachment by construction of kuchha wall and khaprail over it is not a recent construction as alleged to have been made in May 1961.
On the other hand, it is crystal clear from the evidences of Ramji Lal P.W. 1 and Daulat Ram D.W. 1 that the disputed wall with khaprail existed there in the disputed site for a long time, that is 28 years before and the wall and the khaprail have been affected by salt as deposed to by these two witnesses.
Moreover the court Amin 's report 57 C also shows the said walls and khaprail to be 25 30 years old in its present condition.
The High Court has clearly came to the finding that though the partition deed was executed by the parties yet there was no partition by metes and bounds.
Moreover there is no whisper in the plaint about the partition of the property in question between the co sharers by metes and bounds nor there is any averment that the suit property fell to the share of plaintiff 's vendor Ramji Lal and Ramji Lal was ever in possession of the disputed property since the date of partition till the date of sale to the plaintiff.
The plaintiff has singularly failed to prove his case as pleaded in the plaint.
In the premises aforesaid the appeal fails and it is dismissed.
There will however be no order as to costs.
A.P.J. Appeal dismissed.

summary:
The appellant instituted a suit for recovery of possession of the disputed land after demolition of the unauthorised constructions made thereon by the respondent alleging that he became owner of the land on the basis of a registered sale deed, that he started to build a compound wall over and around his land after his purchase, that taking undue advantage of his temporary absence the respondent wrongfully encroached and trespassed along the whole northern length of the land and hurriedly raised a low mud wall and extended his khaprail thatch over it.
In his written statement the respondent denied that the appellant was owner of the land and claimed that the wall and khaprail belonged to him as they have been existing at their present site since time immemorial, that he had been regularly and openly enjoying the land and that under section 142 of the Limitation Act he became the absolute owner of the land in question on the basis of adverse possession and he has a right of easement in the form of flowing of water from the tiled roof.
The Additional Munsif dismissed the suit holding that the appellant was the owner of the property and that he had failed to prove the case of trespass and encroachment.
The appeal filed by the appellant was allowed by the Additional Civil Judge holding that the respondent has failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit, that even if respondent 's wall and khaprail are old ones he is not entitled to maintain them after the same was allotted in the deed of partition dt. 3.3.58, and that the appellant is entitled to posses 1030 sion after demolition of the construction of the portion found encroached by respondent.
The second appeal filed by the respondent was dismissed by the High Court and the judgment and decree of the lower Appellate Court were affirmed.
The respondent filed a review application alleging that the partition deed dt.
17th March, 1963 was not in fact a deed of partition but merely an agreement between the parties to partition the property and there was no actual partition by metes and bounds and that the respondent continued to remain co owner and co sharer of the property in suit.
The High Court allowed the review application and held that the mere allotment of shares by the said deed of partition did not amount to partition by metes and bounds, set aside the judgment and decree of the lower Appellate Court and dismissed the suit.
In the appeal to this Court on behalf of the appellant it was contended that the land in dispute was allotted to the vendor in accordance with the deed of partition (Ext. 3/1) and shown in map (Ext. 3/2) effected between the parties on 17.3.58 and this has been mentioned in the sale:deed (Ext. 1) and, therefore, the judgment and decree of the High Court is not in accordance with law and should be set aside.
Dismissing the appeal, ^ HELD: 1.
There is no pleading regarding the partition of the property No. 164 nor there is any pleading to the effect that the disputed mud wall with the khaprail on it was ever in possession of appellant 's vendor before the sale of the land in question in favour of the appellant.
[1034H; 1035A B] 2.
On a consideration of the evidence on record it is established that the alleged encroachment by construction of kuchha wall and khaprail over it is not a recent construction as alleged to have been made in May 1961.
On the other hand it is crystal clear from the evidence of PW 1 and DW 1 that the disputed wall with khaprail existed there on the disputed site for a long time i.e., 28 years before and the wall and the khaprail have been affected by salt, as deposed by these two witnesses.
The Court Amin 's report 57C also shows the said walls and khaprail to be 25 30 years old in its present condition.
The High Court rightly came to the finding that though the partition deed was 1031 executed by the parties yet there was no partition by metes and bounds.
Moreover, there is no whisper in the plaint about the partition of the property in question between the co sharers by metes and bounds nor there is any averment that the suit property fell to share of appellant 's vendor and he was ever in possession of the disputed property since the date of partition till the date of sale to the appellant.
The appellant has singularly faild to prove the case as pleaded in the plaint.
[1037C E] 3.
Without considering the deposition of Respondent No. 1 as well as the report of the Amin 57C the Additional Civil Judge wrongly held that the respondent failed to prove that the wall in dispute and the khaprail existed for the last more than 12 years before the suit.
The Civil Judge further held on surmises as "may be that the wall and khaprail have not been raised on May 1961 as is the plaintiff 's case, but they are recent constructions.
" This decision of the lower Appellate Court is wholly incorrect being contrary to the evidence on record.
[1037A B]


judgement:
N: Criminal Appeal No. 271 of 1986 From the Judgment and Order dated 31.1.
1985 of the Gauhati High Court in Cr. A. No. 66 of 1983.
S.K. Nandy for the Appellant.
R.K. Garg, Sunil K. Jain and Vijay Hansaria for the Respondents.
The Judgment of the Court was delivered by 1041 B.C. Ray, J.
This appeal by special leave is against the judgment and order passed in Criminal Appeal No. 66 of 1983 by the High Court of Gauhati acquiting both the accused respondents from the charges under Sec.
302 read with Sec.
34 I.P.C. as well as under Sec.
436 read with Sec.
34 of Indian Penal Code, 1860.
The prosecution case in short is that on 2nd November, 1978 at about 7 p.m. two accused respondents Muhim Chandra Barkataki and Dulu Dutta came together to the shop of Nagen Dey since deceased and sprinkled and poured kerosine oil in the shop as well as on the person of Nagen Dey and then set fire.
Immediately fire caught and spread over the shop as well on the body of Nagen Dey.
The shop was a Guliamal (grocery) shop where rice, Dahl, soap, mustered oil, kerosine oil, etc goods were sold and situate at Na Ali Road of Jorhat Town in front of M/s Baruah Printers.
Nagen Dey came out of the shop house with ablazing condition all over his body.
The witnesses Arun Barua, Prabin Barua and Kiron Saikia on seeing the fire rushed to the place of occurrance and put off the fire from the body of the Nagen Dey but Nagen Dey suffered extensive burnt injuries all over his body.
Pradip Jyoti Sarma, Assistant Sub Inspector of Police also came to the place of occurrence a few minutes later and he also witnessed the fire on the person of Nagen Dey as well as in the shop of Nagen Dey.
Prosecution case is, further, that Nagen Dey made a dying declaration before the witnesses stating that the two accused persons namely Muhim Barkataki and Dulu Dutta set fire on his body after pouring kerosine oil.
It was also the prosecution case that both the accused were found at the place of occurrence and public caught hold of the accused Muhim Barkataki red handed at the shop of occurrence whereas other accused Dulu Dutta fled away.
Injured Nagen Dey was immediately removed to Jorhat Civil Hospital for treatment, but he died at the hospital.
Accused Muhim Barkataki was handed over to the Police by the witness Pradip Joyti Sarma, Assistant Sub Inspector of Police.
The information of the incident was received over telephone message at 7.15 p.m. by the Officer Incharge of Jorhat Police Station who recorded an entry in the General Diary being G.D. Entry No. 47 dated 2.11.1978 at 7.15 p.m.
The Town Sub Inspector Sri P. Khatoniar was immediately deputed to make local investigation on the spot.
Sri P. Khatoniar made enquiry and investigation locally at the spot, arrested accused Muhim Barkataki at the spot and returned to police station.
He then informed the facts of occurrence to the Officer incharge of the Police Station who recorded the same under G.D. Entry No. 50 at 8.10 p.m. On 3rd November, 1978 at about 7 a.m. one Sri 1042 Montu Ch.
Dey, nephew of deceased Nagen Dey lodged Ejahar (Ext.5) with Jorhat Police Station.
Thereafter murder and arson cases have been registered against Muhim Barkataki and Dulu Dutta.
Investigation was carried on by Shri Prafulla Kumar Khatoniar.
The Investigation Officer forwarded witnesses Arun Barua, and Kiran Saikia to the court for recording their statements under Sec.
164 of the Criminal Procedure Code.
The Judicial Magistrate Shri Dharyya Saikia recorded the statements of these two witnesses on 7.11.1978.
The Sessions Judge found that the message received over telephone was an information relating to commission of cognizable offence and same was entered into General Diary of the Police Station as Entry No. 47.
On the basis of this information the investigation of the case was entrusted to the Town Sub Inspector Shri Prafulla Kumar Khatoniar with the recording of General Diary Entry No. 47 and the Investigating Officer fairly progressed with the investigation in that very night.
Subsequent information of Montu Chandra Dey on 3rd November, 1978 are nothing but statements during the course of investigation and as such those are hit by Sec. 162 of the Criminal Procedure Code.
It has, therefore, been held that Exhibit 5 cannot be recoganized as the First Information Report of the occurrence.
The General Diary Entry No. 47 which is proved as Ext.
7(1), is the First Information Report of the occurrence.
The Sessions Judge duly considered the evidences of P.W. 4 Arun Barua and C.W. 1 Pradip Joyti Sarma as well as the statements under Sec.
164 recorded by the Judicial Magistrate, P.W. 8 on 7.11.1978 and accepted the dying declaration made by the deceased Nagen Dey implicating the accused Muhim Barkataki and Dulu Dutta as pouring kerosine oil on his body and setting fire to his person.
P.W. 6 Kiran Saikia also stated in his statement under Sec.
164 of Criminal Procedure Code before the Judicial Magistrate, that Nagen Dey, deceased made a dying declaration that these two accused persons sprinkled kerosine over the body of the deceased Nagen Dey and then set fire to him.
These witnesses also proved that the accused Muhim Barkataki was caught hold of red handed at the place of occurrence whereas Dulu Dutta fled away from the place.
The Sessions Judge, therefore, convicted both the accused under sec.
302 read with Sec.
34 of the Indian Penal Code and sentence them to rigorous imprisonment for life.
The accused persons were further convicted and sentenced under Sec.
436 read with Sec.
34 of the Indian Penal Code and they were sentenced to suffer rigorous imprisonment for 5 years each.
Both the sentences shall run concurrently.
1043 Against this judgment and order of conviction and sentence the accused person preferred an appeal being Criminal Appeal No. 66 of 1983 in the High Court of Gauhati.
The High Court proceeded on the footing that entire evidence in the case was circumstantial as there was no eye witness to the occurrence and the clinching circumstances in which the case according to the prosecution is proved are the circumstances relating to the dying declaration.
The learned Judges held that the evidence of P.W. 4 Arun Barua who deposed to the dying declaration was wholly unreliable as there was serious infirmity in his evidence as he disputed his statement made to the Police that the three persons used to drink liquor and play cards which fact as we have observed, is very material to cast a serious doubt on prosecution version itself.
The learned Judges therefore, held that the prosecution failed to prove beyond doubt the offences for which the appellants were charged.
The conviction and sentence passed against the accused persons was set aside and the appeal was allowed.
There is no dispute that the shop of deceased Nagen Dey situated by the side of Na Ali Road was set on fire and fire was also set on the person of Nagen Dey by pouring kerosine.
Eye witnesses P.W. 4 Arun Barua, P.W. 6 Kiran Saikia and P.W. 5 Prabin Barua came to the place of occurrence immediately on seeing the fire.
It is also evident from the evidence of P.W. 4 that he and Kiran Saikia who was in the shop of P.W. 4 both came together at the place of occurrence and they tried to put out the fire by throwing dust on the body of Nagen Dey who was on fire by tearing off his dress and Kiran Saikia put the clothing on the person of deceased Nagen Dey.
It is also in the evidences of P.W. 4 and C.W. 1 Pradip Joyti Sarma, Assistant Sub Inspector, Police that the deceased Nagen Dey made a dying declaration to the effect that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil in his shop and sprinkled kerosine oil on his person and then set on fire.
It is also evident from the depositions of P.W. 4 and C.W. 1 that the accused Muhim Barkataki was caught hold red handed on the spot and he was detained there by the public while Dulu Dutta fled away from the place of occurrence.
It is also evident from the G.D. Entry No. 47 i.e., telephonic message received at the Jorhat Police Station at about 7.15 p.m. on the date of occurrence that the said two men set fire to the person of Nagen Dey, deceased as well as to his Guliamal shop which is in front of Baruah Printers after pouring kerosine oil.
One of the accused persons was caught hold of by local rija (public) while it was informed that Shri P.K. Khatoniar was investigating for local investigation after giving all entries in the diary.
1044 This is proved by Investigation Officer P.W. 7 and marked as Ext.7(1).
It also appeared that immediately after the enquiry and investigation into the incident the Town Sub Inspector Shri Khatoniar returned to the Police Station and informed that Muhim Barkataki and Dulu Dutta entered in the Guliamal shop of Nagen Dey which was in front of Barua Printers of Na Ali and poured kerosine oil kept in the shop for sale and set fire on it and as a result the Guliamal shop was burnt.
Nagen Dey was the owner of the shop who also was set on fire.
It was also recorded in the G.D. Entry that Muhim Barkataki who was caught hold of at the place by the local people has been sent to the police station.
This G.D. Entry No. 50 was proved by P.W. 7 and it was marked as Ext.
It also appears that the witnesses P.W. 4 Arun Barua, P.W. 5 Prabin Barua, P.W. 6 Kiran Saikia and C.W.1 Pradip Joyti Sarma who was on duty on that Na Ali locality at that time arrived at the place of occurrence almost simultaneously and all of them found Nagen Dey out of his shop in a complete ablazing state all over his body.
It also appears from evidences of these three witnesses Arun Barua, Kiran Saikia and Pradip Joyti Sarma that the injured Nagen Dey was conscious and was crying out due to burning pain.
It was also their evidence that the deceased Nagen Dey made a dying declaration at the place of occurrence implicating accused Muhim Barkataki and Dulu Dutta as his assailants.
It is also evident from Exts. 3 and 4 that the Judicial Magistrate Shri Dharyya Saikia (P.W. 8) recorded the statements of Arun Barua (P.W. 4) and Kiran Saikia (P.W. 6) on 7.11.1978 under Sec.
164 of the Criminal Procedure Code stating about the dying declaration made by the deceased Nagen Dey implicating that Muhim Barkataki and Dulu Dutta had set fire on him.
P.W. 4 Arun Barua also in his evidence clearly testifies to this dying declaration made by the deceased Nagen Dey.
Of course P.W. 6 Kiran Saikia tried to contradict his statement made before the Police as well as before the Judicial Magistrate as to the dying declaration made by the deceased Nagen Dey.
He admitted in his examination in chief that he made a statement about this incident before the Magistrate of Jorhat Court.
Exhibit 4 is his statement and Ext.
4 (2) is his signature.
He further stated that the Magistrate has recorded his statement.
But in cross examination he contradicted himself by saying that he was tutored by the police to say so before the Magistrate.
Even if his statement is not taken into consideration there is a clear statement of P.W. 4 Arun Barua before the Magistrate (Ext. 3) as well as his deposition which clearly corroborates his statement before the Magistrate about the dying declaration made by the deceased implicating the two accused persons as his assailants.
The court of appeal below has acted 1045 illegally in discarding the evidence of P.W. 4 as well as his statement recorded under Sec. 164 of the Criminal Procedure Code by the Judicial Magistrate on the flimsy ground that it was not reliable because he contradicted his statement made before the Police that these three persons (the two accused and the deceased Nagen Dey) used to take liquor and play cards.
Moreover C.W. 1 Pradip Jyoti Sarma who came to the place of occurrence a few minutes after the arrival of P.W. 4 and P.W. 6 at the place of occurrence has stated in his evidence that he saw the body of the deceased under fire and the deceased is crying out of burnt pain.
He implicated in his dying declaration that Muhim Barkataki and Dulu Dutta had set fire on his person after pouring kerosine oil on him.
He also stated that at the place of occurrence he found that the accused Muhim Barkataki was caught by the public and he was being assaulted.
He further stated that to save Muhim Barkataki from assultant he handed him over to the Police Constable who was with him.
He also deposed that Nagen Dey has sense and he was speaking.
There was no cross examination of this witness as to the dying declaration made by the deceased.
This witness further stated that he came to the Thana in the night and told the inspector about the incident.
He also stated that he did not know whether O.C. recorded this in the General Diary or not.
P.W. 2 Dr. Jibakanta Borah who hold post mortum on the body of the deceased has stated in his evidence that a person sustaining burnt injuries of such nature may have consciousness for some time before death.
It cannot, therefore, be ruled out that the deceased Nagen Dey was conscious in spite of the severe burnt injuries on his person and he could speak and could make dying declaration as testified to by the witnesses P.W. 4, and C.W. 1.
It has been tried to be urged before us by the learned counsel on behalf of the respondents that there is no evidence to show that the deceased Nagen Dey made a dying declaration as has been alleged as the General Diary Entry was not produced to show such statement of C.W. 1 about the dying declaration recorded therein.
Moreover even if such a dying declaration has been made the same being not corroborated cannot be taken into consideration by the court in convicting the accused respondents.
It has been further submitted that the court of appeal below rightly discarded the alleged dying declaration as being not corroborated by any other evidence and duly acquitted the accused persons.
We have considered and appraised thoroughly the evidence on record and on an overall assessment of the same, we hold that the prosecution has proved beyond reasonable doubt, the charges framed 1046 against them.
The order of acquittal passed by the High Court is liable to be set aside for the reasons stated here after.
Firstly, eye witnesses P.Ws. 4, 5, 6 and C.W. 1 undoubtedly arrived at the place of occurrence immediately on seeing the fire in the grocery shop of the deceased Nagen Dey at about 7 p.m. on 2.11.1978.
All these witnesses have seen that the shop is ablaze and there is fire on the person of Nagen Dey.
It is also the specific evidence of P.W. 4 Arun Barua and C.W. 1 Pradip Jyoti Sarma, A.S.I. at Jorhat Police Reserve deputed by the Jorhat Thana at Jorhat Town in law and order duty on that day.
All these eye witnesses P.W. 4 and C.W. 1 also stated that Nagen Dey was crying a lot in pain out of burnt injuries and he stated clearly that the accused persons Muhim Barkataki and Dulu Dutta poured kerosine oil on him and set fire on his body.
So far as depositions of P.W. 4 and C.W. 1 are considered there is no cross examination on this point.
Further more, P.W. 4 and P.W. 6 made statements Exts.
3 and 4 under Sec.
164 of Criminal Procedure Code before the Chief Judicial Magistrate of Jorhat (P.W. 8) to the effect that the deceased Nagen Dey made a dying declaration implicating the accused persons as his assailants.
This recording of the statements of P.W. 4 and P.W. 6 was proved by the deposition of the Addl.
Chief Judicial Magistrate at Jorhat, Shri Dharyya Saikia (P.W. 8).
Of course, P.W. 6 Kiran Saikia tried to contradict his statement made before the Chief Judicial Magistrate.
As regards the evidence of C.W. 1 it has been tried to be contended that his statement before the O.C. of the Police Station that the deceased made a dying declaration cannot be accepted as there is nothing to show that this was recorded in the G.D. Entry.
This statement cannot be accepted inasmuch as the learned Sessions Judge has assigned cogent reasons as to why Pradip Jyoti Sarma was examined as a court witness under the provisions of Sec.
311 of the Code of Criminal Procedure.
It has been clearly found that Shri Sarma was an independent and disinterested witness and he was found to be reliable and trustworthy.
It has been also found that Shri Pradip Jyoti Sarma is an important witness of the case and his examination was for the just decision of the case and his evidence has full corroboration with another independent and disinterested witness namely Arun Barua who is also found to be trustworthy and reliable witness.
The evidence of Shri Pradip Jyoti Sarma cannot be under estimated merely because he is a police officer.
The Sessions Judge also stated in his order that the reasons for examining him as a court witness had been elaborately recorded in the order sheet dated 17.2.1982 and 22.3.1983.
Therefore, considering this finding of the Sessions Judge we hold that there is no infirmity in the findings of the Sessions Judge in treating Pradip Jyoti 1047 Sarma as a court witness under the provisions of Sec.
311 of the Code of Criminal Procedure.
There is no criticism regarding the evidence of P.W. 4 on behalf of the respondents as to why his testimony regarding the dying declaration shall not be taken into consideration apart from the evidence of C.W. 1 Pradip Jyoti Sarma.
Moreover it is evident from Exts. 3 and 4, the statements of P.Ws. 4 and 6 recorded under Sec. 164 of the Code of Criminal Procedure by the Addl.
Judicial Magistrate, Jorhat on 7.11.1978 that these two witnesses P.Ws. 4 and 6 clearly stated about the dying declaration made by Nagen Dey implicating both the accused as his assailants.
Along with this testimony of P.W. 4 and C.W. 1 that Muhim Barkataki was caught hold red handed on the spot and was detained by the public while Dullu Dutta fled away from the place of occurrence.
All these clearly go to prove the prosecution case beyond any reasonable doubt and it leads to the only conclusion that these two accused persons poured kerosine oil in the shop as well as sprinkled kerosine oil on him and set fire on the deceased as well as to the shop.
It has been tried to be contended that the dying declaration as referred to by P.W. 4 in his deposition has not been corroborated by any independent witness and as such the same cannot be relied upon in convicting the accused.
In support of this submission reference has been made to the decision reported in Ramnath Madho Prasad & Ors.
vs State of Madhya Pradesh, A.I.R. 1953 S.C. 420 wherein it has been observed: "It is settled law that it is not safe to convict and accused merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross examination and because the maker of it might be mentally and physically in a state of confusion and might be well drawing upon his imagination while he was making the declaration.
It is in this light that the different dying declaration made by the deceased and sought to be proved in the case have to be considered.
" This observation has been overruled being in the nature of obiter dicta by this Court in a subsequent decision in Khushal Rao vs State of Bombay, ; The same view was taken by this Court in the case of Kusa & Ors.
vs State of Orissa; , at 562 para 9.
It is pertinent to refer to the observation of this Court on this point made in State of Assam vs Muaizuddin Ahmed, ; at 19 para 10 which are in the following terms: 1048 "Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner.
" It has been observed by this Court in Jayarajl vs State of Tamil Nadu, A.I.R. 1976 S.C. 1519 at 522 para 16 which reads: "When the deponent (while making his dying declaration) was in severe bodily pain (because of stab injuries in the abdoman) and words were scare, his natural impulse would be to tell the Magistrate, without wasting his breath on details as to who stabed him.
The very brevity of the dying declaration, in the circumstances of the case, far from being a suspicious circumstance, was an index of its being true and free from the taint of tutoring, more so when the substratum of the dying declaration was fully consistent with the occular account given by the eyewitness.
" In the instant case we have carefully considered the evidences of P.W. 4 as well as of C.W. 1 and we are clearly of the opinion that the deceased Nagen Dey made the dying declaration in question clearly implicating the two accused persons as his assailants.
The dying declaration made by the deceased while he was suffering severe pain from grievous injuries is truthful and reliable.
Therefore, on an overall as sessment of evidences recorded particularly the evidence of P.W. 4 and C.W. 1 and also the statements recorded under Sec. 164 of Criminal Procedure Code Exts.
6 and 4, we find that the charges under Sec. 382/34 and Sec.
436/34 of the Indian Penal Code, 1860 has been proved by the prosecution beyond reasonable doubt against the two accused persons.
They were rightly convicted by the Sessions Judge and sentence to rigorous imprisonment for life under Sec.
302/34 I.P.C. and also to rigorous imprisonment for 5 years under Sec.
436/34 of the Indian Penal Code.
Both the sentences will run concurrently.
The judgment and order of acquittal passed by the High Court is hereby set aside and the judgment and order of conviction and sentence awarded by the Sessions Judge is hereby affirmed.
Let warrant of arrest issue forthwith against the accused for serving out the sentence.
P.S.S. Appeal allowed.

summary:
The prosecution alleged that the accused respondents set fire to deceased 's body and his shop after sprink ling kerosene oil, that on seeing the fire P. Ws. 4, 5 and 6 rushed to the place and put off the fire from the body of the deceased who had come out of the shop ablaze, and that C.W. 1, the Assistant Sub Inspector of Police, who was on law and order duty also came to the place of occurrence simultaneously and witnessed the incident.
The deceased made a dying declaration before these witnesses stating that the said two accused had set fire to his body after pouring kerosene.
One of the accused was caught hold of by the public red handed at the shop whereas the other accused fled away.
The Officer in charge of Police Station was informed of the incident on the telephone.
The deceased was removed to the hospital where he later died.
Cases of murder and arson were thereafter registered against the accused.
P.Ws. 4 and 6 made statements under section 164 Cr.
P.C. before the Magistrate and deposed to the factum of dying declaration made by the deceased implicating the accused.
The Sessions Court after considering the evidences of P.W. 4 and C.W. 1 as well as the statements recorded under section 164 Cr.
P.C. accepted the dying declaration made by the deceased and convicted the accused under section 302 read with section 34 I.P.C. and sentenced them to 1039 rigorous imprisonment for life.
They were further convicted and sentenced under section 436 read with section 34 I.P.C.
The High Court on appeal, however, found that the prosecution had failed to prove beyond doubt the offences for which the appellants were charged, that the entire evidence in the case was circumstantial as there was no eye witness to the occurrence, that the evidence of P.W. 4 as to the dying declaration was wholly unreliable, and therefore, set aside the conviction and sentence passed against the accused.
The appeal by the State to this Court was opposed by the accusedrespondents contending that there was no evidence to show that the deceased made the dying declaration and even if such a declaration has been made the same having not been corroborated cannot be taken into consideration in convicting them.
Allowing the Appeal, the Court, ^ HELD: The accused were rightly convicted by the Sessions Court.
The prosecution has proved beyond reasonable doubt the charges framed against them.
The order of acquittal passed by the High Court is, therefore, liable to be set aside.
[1048G] The dying declaration made by the deceased while he was suffering severe pain from grievous injuries clearly implicating the two accused persons as his assailants is truthful and reliable.
[1048E] The eye witnesses, P. Ws. 4, 5 and 6 and C.W. 1 had undoubtedly arrived at the place of occurrence immediately on seeing the fire.
They had seen that the shop was ablaze and there was fire on the person of the deceased.
Then there is the specific evidence of P.W. 4 and C.W. 1 that the deceased was crying a lot in pain due to burn injuries and that he stated clearly that the accused persons poured kerosene on him and set fire to his body.
There are also the statements of P.W. 4 and 6 made under section 164 Cr.
P.C. to the effect that the deceased made a dying declaration.
P.W. 2, who held post mortem on the body of the deceased has stated in his evidence that a person sustaining burn injuries of such nature may have been conscious for some time before his death.
It cannot, therefore, be ruled out that the deceased was conscious in spite of the burn injuries on his person and he could speak and make dying declaration as testified to by P.W. 4 and C.W. 1.
[1046A D; 1045E] There is no infirmity in the action of the Sessions Court treating as a court witness.
It has assigned cogent reasons as to why P.W. 1 was examined as a court witness under the provisions of section 311 Cr.
P.C. He has been found an independent and disinterested witness, to be reliable and trustworthy.
He was an important witness of the case and his examination was for the just decision of the case.
His evidence has full corroborations with another independent and distinterested witness, P.W. 4, who was also found to be trustworthy and reliable.
The evidence of C.W. 1 cannot, therefore, be underestimated merely because he was a police officer.
[1046E G] The Court of appeal has acted illegally in discarding the evidence of P.W. 4 as well as his statement recorded under section 164 Cr.
P.C. There is no criticism regarding the evidence of this witness on behalf of the respondents as to why his testimony regarding the dying declaration shall not be taken into consideration.
[1044H; 1045A B] There is also the testimony of P.W. 4 and C.W. 1 that one of the accused was caught hold red handed at the spot and was detained by the public while the other fled away from the place of occurrence.
[1043F G] All these lead to the only conclusion that the two accused persons poured kerosene in the shop as well as on the deceased and set them on fire [1047C D] Ramnath Madho Prasad & Ors.
vs State of Madhya Pradesh, AIR 1953 SC 420; Khushal Rao vs State of Bombay, ; ; Kusa & Ors.
vs State of Orissa, ; at 562 para 9; State of Assam vs Muaizuddin Ahmed, ; at 19 para 10; and Jayaraj vs State of Tamil Nadu, AIR 1976 SC 1519 at 1522 para 16 referred to.