judgement:
Appeals Nos. 212 to 216 of 1965.
Appeals by certificates/special leave from the judgment and decree dated September 3, 1965 of the Allahabad High Court in First Appeals Nos.
523 of 1933, and 557 of 1930.
R. K. Garg, D. P. Singh, Anil Kumar Gupta, Shiv Pujan Singh and K. M. K. Nair, for the appellants (In C.A. No. 212 of 1965).
Yogeshwar Prasad, E. C. Agrawala and P. C. Agrawala, for the appellants (In C.As.
Nos. 213 and 214 of 1965).
G. N. Kunzru, B.P. Singh and R. B. Datar, for the appellant (In C. A. No. 215 of 1965), for the respondent (In C.As.
Nos. 212, 213 and 214 of 1965 and for the respondents (In C.A. No. 216 of 1965).
C. B. Agarwala, V. K. Sanghi and K. P. Gupta, for the appellant (In C. A. No. 216 of 1965).
The Judgment of the Court was delivered by Mitter, J.
Bounded by the river Ganges on the cast, in the locality named Tripura Bhairvi of the temple studded city of Benaras there stands a math popularly known as Uttam Giri 's Math, the origin of which is lost in antiquity.
For well over a century this Math has been a sanctuary of a spiritual brotherhood of Nihang Dasnami Sanyasis.
Claim is laid that they belong to one of the ten orders of Sanyasis founded by the chelas of the 602 four disciples of the famous philosopher, Sankaracharya.
Starting probably without any nucleus of endowed immovable property, the heads of the Math appear to have prospered enormously in matters material and temporal.
Successive heads of the Math or Mahants as they were commonly known, seem to have been more keen about the acquisition of wealth and preservation of properties than about the furtherance of the spiritual benefit of the brotherhood.
Gifts in the shape of endowments seldom came their way but the Mahants who uniformly pursued a money lending business also styled as a banking business in some of the documents, went on amassing wealth and property treating themselves as full owners thereof and directing their successors almost invariably nominated by their wills, to treat the property in the same way as they themselves were doing but paying scant regard to the cause of the brotherhood or the pursuit of any charitable purposes.
One Mayanand Giri became the Mahant in 1904 and it is his acts and conduct which sparked off this litigation nearly forty years ago.
The immediate cause of the legal proceedings was his marriage which led the plaintiff, Purushottamanand Giri, to file the suit in the court of the Subordinate Judge of Benaras claiming a declaration that by his marriage, the defendant No. 1, Mayanand Giri, had lost his right to continue as Mahant and that the plaintiff as his nearest collateral should, according to the custom of Nihang Dasnami Sanyasis, be put in occupation and possession of the Math the properties appertaining thereto.
The plaintiff also challenged a number of alienations impleading no less than forty five persons as defendants and claiming that the transfers made by defendant No. 1 were invalid and not binding on the Mahant of the Math.
The suit was contested not only by Mayanand Giri but also by a number of the transferees.
The defences raised were many and various.
The first defendant pleaded inter alia that the plaintiff was not his nearest collateral, that there did not exist a Math with the customs and usages alleged in the plaint and that all the properties scheduled in the plaint were not the subject matter of any endowment.
The case of the transferees was that most of the properties were acquired by successive Mahants starting from Chaitanya Giri by the practice of a money lending business.
It was said that a banking firm styled as Uttam Giri Shivdutt Giri was 603 started by his successors and it was this business which was pursued by the Mahants that gave rise to the wealth accumulated in the Math.
The common defence of all the transferee defendants who contested the suit was that Mayanand Giri was the absolute .owner of the properties alienated and that they themselves were bona fide transferees for valuable consideration and as such the transactions entered into with them by Mayanand Giri could not be challenged.
The suit was dismissed as against a large number of defendants who were found to be dead at the time of its institution or because they were not properly brought on the record in place of the original defendants.
The Subordinate Judge after a protracted hearing came to the conclusion that the ancient documents on the record, coupled with the other evidence, established the existence of an ancient Math, that the Mahants from the time of Gangot Gir had been carrying on a money lending business, that an ancestor of Gangot Gir by name Gomtigir had established a Math on a humble scale, that Prem Giri, a grand disciple of Gangot Gir, established another Math of his own, that Uttam Gir who succeeded Prem Gir had certainly created one and that the predecessors of the defendant, Mayanand Giri like himself had two kinds of properties, namely, Math property and personal property.
According to the Subordinate Judge the nucleus from which the Math in suit originated was the personal property of Prem Gir.
On the evidence he held 12 items of property mentioned in the will of Shivdutt Gir who succeeded Prem Gir and two other items of property to be endowed properties.
The transfers effected by Mayanand were, according to the Subordinate Judge, beyond challenge because they related only to his personal properties.
Two appeals were filed against the judgment and decree of the Subordinate Judge, one by the plaintiff and the other by Mayanand.
The Allahabad High Court on appeal dismissed the suit on the view that there was no Math at all, that there was only a banking business and that the property was non religious personal property acquired by Mayanand and his predecessors by following a banking business.
A further appeal from the Allahabad High Court was disposed of by this Court by a judgment dated December 20, 1954.
After noting in brief the 604 conclusions of the Subordinate Judge and of the Allahabad High Court, it was observed by this Court that "the short and only question therefore before us is, whether or not the existence of the math which is the foundation of the plaintiff 's case has been satisfactorily made out.
" This Court then proceeded to examine the principal ancient documents and observed: "All the above documents, broadly considered, indicate definitely ,(1) the existence of a spiritual brotherhood affiliated to each other by ties of initiation and succession, (2) the existence of a mutt which is the residence of the brotherhood as well as of the gaddinashin thereof and which in specific terms has been successively provided as being inalienable, (3) the existence of certain properties at least from the date of death of Sheodat Gir which were made specifically inalienable in the hands of his successors, presumably for the use of the spiritual brotherhood, and (4) the existence of a number of items of property which in terms were dedicated for spiritual uses like Dharmashalas, feeding of ascetcis, etc.
and were designated as waqf.
" This Court then considered the evidence of prior conduct of Mayanand Giri himself and certain admissions made by him and held "that the case of the first defendant denying the existence of a mutt or of any properties as belonging to it is totally false." According to this Court "it is quite clear that what is now designated as the mutt No. 42/90 D must have been in existence at least from the time of Prem Gir i.e. for over a century and that this item of property in the hands of successors of Prem Gir was subject to the condition of in alienability, expressly provided in Premgir 's Tamliknama, and impliedly so provided in the will of Sheodat Gir.
" 605 Further "notwithstanding that there is no specific deed of endowment, the fact that the particular building has been continuously used as the residence of the brotherhood, and the seat of the head thereof in succession and the fact that it has been specifically provided as being inalienable constitute sufficient evidence of dedication of this building as a mutt.
" Examining the evidence further, both oral and documentary, this Court was not inclined to concur with the view expressed by the High Court that the evidence did not "disclose the existence at any time of a religious institution or a monastery with any attempt at religious study or religious teaching but that it disclosed only banking or money lending business which passed on from each of its proprietors to his chosen successor.
" Great stress was laid on the documents of 1828 and 1839 to be noted in detail hereafter which did not, according to this Court, indicate that the ownership given thereby to the successors was to be for their personal uses and that all the transactions disclosed by these and other documents noticed by the High Court were inter se between the members of the brotherhood and not with outsiders.
It was observed that "The document of 1887 appears to us to clinch the position by specifically providing that the properties left by Sheodat Gir were not to be alienable in the hands of the successors.
The inalienability impressed upon by these properties by the then head of the spiritual brotherhood can reasonably be presumed to be only for the purpose of spiritual brotherhood." According to this Court these circumstances should "be normally treated as indicative of the religious character of the property for the use of the brotherhood.
" The conclusion of this Court (as appearing at page 607 of the paper book) was in these terms: "We are, therefore, satisfied that the existence of a mutt as an institution has been clearly made out on the evidence in this case and that the building No. 42/ 90 D belongs to and constitutes the mutt and that the 606 contrary view is untenable.
The only substantial question in the case is whether and to what extent the properties in suit belong to this mutt as an institution.
The learned trial Judge dealt with this question and held only a few out of the large number of items mentioned in the plaint schedule as belonging to the mutt.
The learned Judges of the High Court did not feel called upon to give any finding as to this in the view that they had taken.
These appeals will, therefore, have to go back to the High Court for further consideration of this question and of other questions left un decided.
" Finally it was observed (at p. 610): "that our judgment concludes the question as to whether house No. 42/90 D is or is not mutt property.
The only substantial questions that remain are as to which of the other properties in the plaint schedule belong to the mutt and whether such alienations as relate to mutt properties are valid and binding on the mutt.
" This Court further upheld the finding of the Subordinate Judge in favour of a custom among the Dasnami Sanyasis of the neighbourhood that by reason of his marriage Mayanand had become a "Patit" and had forfeited the office of Mahantship and the same community had elected the plaintiff as the Mahant of the Math at Tripura Bhairavi.
On remand, the High Court examined the ancient documents once more and after referring to the observations of this Court quoted above, stated that it had been definitely found by this Court that some of the properties in suit must belong to the Math and went on to add: "In view of this finding of the Supreme Court the fact that the evidence on the record does not expressly indicate which property belonged to the Math and which did not, should lead to the conclusion that all the property belongs to the Math.
Property acquired by a Mahant personally but blended with the Math property will itself become Math property.
He is com petent to endow his property.
Blending it with Math 607 property is an indication that he endowed it to the Math or intended it to be Math property." According to the High Court: "It was, therefore, necessary for the defendants to establish that such and such property was acquired .not as a Mahant but as an individual and was also kept separate from the Math property which the Mahant was managing.
" The High Court then went on to consider the alienations made by the Mahants who had preceded Mayanand Giri from time to time and was of the view: "during this long period the brotherhood did purchase properties but hardly transferred any property and that this may be either as the properties were not considered personal and alienable or as the mahants had no occasion to transfer property, their income being in excess of expenditure.
" The High Court examined the transactions of Mayanand Giri challenged by the plaintiff and was not satisfied that any enquiry had been made by the alienees about the necessity or the purpose of the math justifying the alienations.
In the result, the High Court allowed the appeal with costs throughout against Mayanand Giri and a number of alienees, some of whom only have come up in appeal.
[His Lordship then examined the documentary evidence in order to ascertain the character of the property in dispute, and held:] In our view, the High Court fell into an error in holding that the observations of this Court led to the conclusion that all the property belonged to the math because the evidence on the record did not expressly indicate which property belonged to the math and which did not.
On the facts of this case it is not possible to hold that the mahants blended their self acquired and personal property with math property so as to make the whole partake of the character of the latter class of property.
A Mahant is undoubtedly competent to endow the property acquired by him but merely because in the Tamilknamas he makes no dis 608 tinction between property acquired by him personally and property which undoubtedly formed the subject matter of a prior endowment, the personally acquired properties cannot be said to be math property when the evidence on record establishes that all the mahants were holding themselves out as absolute owners of the property and were transferring various items of property from time To time albeit to persons of the same brotherhood.
On the evidence on record, we are not in a position to hold that any of the properties other than the 15 items above mentioned were math properties.
The fact that the predecessors in ' interest of Mayanand Giri had renounced the world and became sanyasis and had almost uniformly nominated the person who was to succeed them from out of the disciples or disciples of disciples, does not lead to the conclusion that the properties must be treated as math properties.
In Parama Nand vs Nihal Chand(1) the question before the Judicial Committee of the Privy Council was whether an Udasi could acquire private property with his own money or by his exertions and if he did so, whether it passed on his death to his spiritual heir including his Chela or could be inherited by his natural relatives.
There one Narain Das had filed a suit for obtaining an authoritative pronouncement on the character of certain property held by him, the case of the defendants being that Narain Das was no more than the trustee of an endowment and could be called upon to furnish details of the nature and purpose of the trust.
The High Court at Lahore had held in favour of the trust, the principal ground of their judgment being that the properties had descended from Guru to Chela.
This was not accepted by the Judicial Committee and it was observed that: "this circumstance (the descent from Guru to Chela) does not necessarily lead to the conclusion that a property, when acquired by a Mahant, loses its secular character and partakes of a religious character.
" In Raghbir Lala vs Mohammad Said(2) the plaintiffs ' case was that the land in suit claimed by the defendants directly or in (1) 65 I.A. 252.
(2) A.I.R. 1943 P.C.7.
609 directly under transfers made in 1915 and 1916 by one Jain andar Kirat were debutter.
It was established that one Manindar had purchased the land in the suit but there was no evidence that having acquired the land Manindar dedicated it to any Jain institution or religious purpose.
It transpired that he had solicited subscriptions for the erection of a temple which was not built and that except for the actual site of the foundations of the temple, he had used the rest of his land for his own purposes.
According to the Judicial Committee : "He appears to have made money by practising astrology and medicine and by lending money occupations which he added to that of a religious teacher. .
His life and conduct may not have been in accord with his religious professions as a Jain ascetic, but in fact he held and managed the property which he had bought and indeed litigated about it, as if it were his own without any interference or assistance by the Jain community." The Judicial Committee held on this evidence that the plaintiffs could not succeed on the ground of dedication by Manindar.
The Board further observed: "No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have some importance.
But it is out of question to suppose that a man 's religious opinions or professions can make him incapable in law of holding property.
" In our view, the observations made on the prior occasion by this Court were only an indication that the circumstance of succession of properties from one Mahant to another, had an important bearing on the final conclusion as to the character of the properties without being a decisive factor in respect thereof.
in this case, we find that the Mahants had systematically pursued a money lending business, that there was little nucleus of any endowed property, that during the course of a century and a half L2 Sup 68 8 610 the proved endowments were hardly of any importance, that the Mahants were transferring properties to others in recognition of the claims of the disciples or voluntarily for lawful consideration and were describing themselves in the Tamliknamas as the absolute owners of the property, we cannot but hold that the properties in their charge were their personal properties unless it be established that any particular.
item of property was the subject matter of an endowment or a gift for a particular charitable purpose.
We have already held that only 15 items of property including premises No. 42/90 D were math properties.
On the evidence, we are not in a position to declare that the other properties were not personal properties in the hands of Mayanand Giri.
It follows that the transfers of Mayanand Giri of this class of properties must be upheld so far as they are subject matter of the appeals before us.
G.C. Appeals allowed.

summary:
The successive Mahants of Uttar Giri Math in Benaras acquired properties and made dispositions of properties to their disciples who succeeded them.
The incumbent of the office of Mahant in 1904 entered into a marriage against the custom of the brotherhood.
One of his collaterals thereupon filed a suit in which he claimed to be put in possession of the properties of the Math, also challenging some of the dispositions of property made by the Mahant.
The defendants contended that all the properties in question did not belong to the Math and that the properties transferred were the personal properties of the Mahant.
The trial Court held that the transferred properties were the personal properties of the Mahant and his predecessors and that only 12 items of property were endowed properties.
In appeal the High Court held that all the items of property were personal property.
In further appeal this Court held that the building in which the brotherhood resided was certainly Math property; as to other properties the case was remanded to the High Court for determining whether, they were personal properties or endowment properties.
The High Court, noting this Court 's view that at least some properties must belong to the Math, observed : "In view of this finding of the Supreme Court the fact that the evidence on the record does not expressly indicate which property belonged to the, Math and which did not.
should lead to the conclusion that all the property belongs to the Math.
Property acquired by a Mahant personally but blended with the Math property will itself become Math property.
" On this view the High Court dismissed the appeal.
The defendants came to this Court.
HELD : The High Court fell into an error in holding that the observations of this Court in the earlier appeal led to the conclusion that all the property belonged to the Math because the evidence on record did not expressly indicate which property belonged to the Math and which did not.
If such had been the intention of the learned Judges bearing the appeal they would have clearly said so.
[607 G H] On the facts of the case it was not possible to hold that the Mahants blended their self acquired and personal property with Math property so as to make the whole partake of the character of the latter class of property.
The Mahants had systematically pursued a money lending business, had transferred properties to others in recognition of the claims of 601 the disciples or voluntarily for lawful consideration and were describing themselves in the Tamliknamas as the absolute owners of the property.
[607 H; 609 GH] On an examination of the evidence only 15 items of property including main building in which the Math was situated were Math property.
About the rest of the, property it could not be said that it was not the personal property of the Mahant.
The transfers of such property by the latter could not therefore be challenged.
[608 OC; 609 H] The fact that the successive Mahants had renounced the world and became sanyasis and had almost uniformly nominated the person who was to succeed them from out of the: disciples or disciples of disciples does not lead to the conclusion that the properties must he treated as Math properties.
[608 C] Parama Nand vs Nihal Chand, 65 I.A. 252 and Raghbir Lala vs Mohanmad Said, A.I.R. 1943 P.C. 7, relied on.


judgement:
minal Appeal No. 124 of 1965.
Appeal by special leave from the judgment and order dated April 26, 1965 of the Punjab High Court, Circuit Bench at Delhi in Criminal Revision No. 266 D of 1964.
Bhawani Lal, Kartar Singh Suri and E. C. Agrawala for P. C. Agrawala, for the appellants.
R. N. Sachthey, for the respondent.
457 The Judgment of the Court was delivered by Hegde, J.
Two questions that arise for decision in this appeal by special leave are : (1) whether the appellants have established satisfactorily the right of private defence pleaded by them and (2) if they had that right, have they exceeded the same ? The prosecution case is as follows : Field No. 1129/477 measuring five bighas and thirteen biswas situated in Kilokri was an evacuee property and as such was under the management of the managing officer.
That property was acquired by the Central Government under the Displaced Persons Act, 1954.
(For the sake of convenience we shall refer to that property hereinafter as evacuee property.) The same was sold by public auction on January 2, 1961 and purchased by PW 17 Ashwani Kumar Dutt for a sum of Rs. 7,600.
Provisional delivery of that property was given to the vendee on October 10, 1961.
The sale certificate was issued on February 8, 1962.
The actual delivery was given on June 22, 1962 as per the warrant issued by PW 5.
Khushi Ram, the managing officer.
The said delivery was effected by PW It) Sham Das Kanungo.
On July 1, 1962 when PW 17 and his father PW 19, R. P. Dutt went to the field with PW 16, Gopal Das, PW 15 Nand Lal and one B. N. Acharya with a trac tor to level the land, the appellants came armed with spears and lathis attacked the complainants ' party and caused injuries to PWs 17 and 19 and the tractor driver, B. N. Acharya.
Though the appellants in their statement under section 342 Cr.
P.C. denied having been present at the scene of occurrence or having caused injuries to any one, the plea taken on their behalf at all stages was one of private defence.
Their case is that their relation Jamuna (DW 3) was the tenant in the land for over thirty years.
His tenancy was never terminated.
He had raised crops in the field in question.
There was no delivery on June 22, 1962.
If there was any delivery as alleged by the prosecution, the same was without the authority of law and as such was of no effect.
Hence, Jamuna continued to be in possession of the property even on July 1, 1962.
On the day prior to the occurrence, PWs 17 and 19 tried to intimidate Jamuna to come to terms with them and to peacefully deliver possession of the property to them.
But he put off the question of compromise by pleading that he was going out of station and the question of compromise could be considered after his return.
With a view to forcibly assert their right to the property, the complainant party came to the field in a body on July 1, 1962 with a tractor.
At that time PW 19 was armed with an unlicensed pistol.
It is at this stage that the appellants who are near relations of Jamuna went to the field and asked the complainant party to clear out of the field.
When they refused to do 458 so, they pushed them and thereafter used minimum force to throw them out of the field.
On the basis of the above facts, it was urged on behalf of the appellants that they were not guilty of any offence.
The courts below have accepted the prosecution version both as regards possession as well as to the manner in which the incident took place.
The appellants have been convicted under sections 447, 324 read with 149 and 148 I.P.C.
We have now to see whether on the basis of the undisputed facts as well as the facts found by the High Court, the defence can be said to have made out the plea of defence of property advanced on their behalf.
It is true that appellants in their statement under section 342 Cr.
P.C. had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross examination of the prosecution witnesses as well as by adducing defence evidence.
It is well settled that even if an accused does not plead selfdefence, it is open to the court to consider such a plea if the same arises from the material on record see In re Jogali Bhaigo Naiks and another(1).
The burden of establishing that plea is on the accused and that burden can be discharged by showing prepon derance of probabilities in favour of that plea on the basis of the material on record.
The first question that arises for decision in this case is as to who was in possession of the field in dispute on the date of the occurrence, i.e., on July 1, 1962.
For deciding that question it is necessary to find out as to who was in possession of the same prior to June 22, 1962, the date on which that field was said to have been delivered to PW 17.
On this question, the prosecution is silent.
DW 3, Jamuna, in his evidence deposed that he had been in possession of that field as a tenant for over thirty years.
His case was that he was formerly the tenant in respect of that field under some Muslim landlords and after their migration to Pakistan, under the officer managing the evacuee property.
This evidence of his was not challenged in cross examination.
That evidence is supported by the prosecution exh.
The courts below have also proceeded on the basis that Jamuna was in possession of the field till June 22, 1962.
Therefore, we have to see whether there was any lawful delivery of that field on June 22, 1962.
At this stage it is necessary to recapitulate that the field in question had been sold by the managing officer on January 2, 1961.
Its provisional delivery was given on October 12, 1961.
The sale certificate was issued on 8 2 62 (exh.
Therefore, the government had no interest in that field on or after the aforementioned sale.
It is not the case of the prosecution that Jamuna 's tenancy had been terminated by any of the authorities constituted under (1) AIR 1927 Mad.
459 the (to be hereinafter referred to as the Act).
It may further be noted that the exh.
PM The terms and conditions under which the auction of the field was held does not show that the government had undertaken to deliver physical possession of that field to the purchaser.
From the facts stated above it is obvious that Jamuna continued to be the tenant in the land even after the sale in favour of PW 17.
The prosecution case is that delivery of that field was given to PW 17 by PW 10 the kanungo on June 22, 1962 as per the delivery warrant issued by PW 5, the managing officer.
Even according to the prosecution version, at the time of that delivery Jamuna was not present.
There is also no evidence to show that Jamuna was aware of the alleged delivery.
It is true that as a token of the delivery, some ploughing was done at the time of the alleged delivery.
At this stage it is also necessary to mention that at the time of the alleged delivery, crops grown by Jamuna were there in a portion of the field.
It was said that the kanungo who delivered the field, valued the crops in question at Rs. 60 and the same was deposited by PW 17 with PW 5 as per the orders of the latter for being paid over to Jamuna.
We were not told under what authority those steps were taken.
This takes us to the question whether the purported delivery is valid in law.
Normally before a tenant can be evicted from his holding, his tenancy must be terminated and the eviction should be done through a court of competent jurisdiction.
No landlord has any right to throw out his tenant from his holding.
The law on the subject was explained by this Court in Lallu Yeshwant Singh vs Rao Jagdish Singh and others(1).
Therefore, it is clear that PW 17 who had become the owner of the land long before June 22, 1962 could not have evicted Jamuna from the land in the manner alleged.
The next question is whether PW 5, the managing officer was competent to evict Jamuna.
We fail to see how he could have done it.
He had no interest in the land in question on June 22, 1962.
The right, title and interest of the government in the land had long been alienated.
The managing officer had already given to the vendee such possession as he could have, namely, the landlord 's possession.
Thereafter it went out of the compensation pool and the managing officer had no power to deal with it unless otherwise expressly provided.
Our attention has not been invited to any provision in the Act authorising the managing officer to deal with a property which had ceased to be an.
evacuee property.
Therefore we fail to see how PW 5 could have issued any warrant for the delivery of the field in question on June 22, 1962.
(1) ; 460 Before the courts below it was pleaded on behalf of the prosecution which plea commended itself to those courts that the .delivery in question was effected under section 19 of the Act.
Section 19 ,to the extent it is material for our present purpose, reads thus I Notwithstanding anything contained in any contract or any other law for the time being in force but subject to any rules that may be made under this Act, the managing officer or managing corporation may cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee property acquired under this Act is held or occupied by a person, whether such allotment or lease was granted before or after the commencement of this Act.
(2) Where any person (a) has ceased to be entitled to the possession of any evacuee property by reason of any action taken under sub section (1), or (b) is otherwise in unauthorised possession of any evacuee property or any other immovable property forming part of the compensation pool; he shall, after he has been given a ,reasonable opportunity of showing cause against his eviction from such property, surrender pos session of the property on demand being made in this behalf by the managing officer or managing corporation or by any other person duly authorised by such officer or corporation.
(3) If any person fails to surrender possession of any property on demand made under sub section (2) the managing officer or managing corporation may, notwithstanding anything to the contrary contained in.
any other law for the time being in force, eject such person and take possession of such property and may, for such purpose, use or cause to he used such force as may be necessary.
" The above provisions apply only to properties which are under .the control of the managing officers or managing corporations.
They do not apply to properties which have ceased to be evacuee properties.
Further, it is not the prosecution case that any action under sub sections 1 and 2 of section 19 had ever been taken against Jamuna.
If that was so, no action under sub section
3 of section 19 could have been taken.
As a condition precedent for taking action under sub section
.of section 19 it was necessary to take the steps prescribed by sub section
461 of section 19.
It must be noted that the power conferred under sub section 3 is a special power conferred for a special purpose.
Such a power has to be exercised strictly in accordance with the conditions prescribed.
If it is not so exercised, the exercise of the power would be vitiated.
Having not taken any action under sub section 2 of section 19, the managing officer was incompetent to issue any warrant for delivery under sub section
3 of section 19 under which he is said to have acted.
It was for the vendee to take the necessary steps under law for taking possession from Jamuna.
Therefore, it is obvious that the alleged delivery has no legal force.
In the eye of the law it is non est.
Hence Jamuna continued to be in possession of the field in question even after the so called delivery on Juno 22, 1962.
This aspect of the case was completely lost sight of by the courts below.
It is seen from the evidence of DW 3, Jamuna, which evidence was not even challenged in cross examination, that PWs 17 and 19 were aware of the fact that the purported delivery on June 22, 1962 was merely a paper delivery.
In his chief examination, DW 3, Jamuna, deposed thus: " A day prior to the occurrence, R. P. Dutta and his son Ashwani Kumar had met me and had asked me to get the compromise effected.
I told him that since I was proceeding out station in connection with some marriage, any talk of compromise could take place after my return from there.
Both R. P. Dutta and his son Ashwani Kumar had threatened me that in case I would not deliver possession of the land in question willingly, they would get possession of the same by force under the pressure of the police.
AR the accused are near relations of mine.
" To repeat, this evidence was not challenged in cross examination.
From that evidence it is clear that at about the time of occurrence PWs 17 and 19 were conscious of the fact that Jamuna still continued to be in possession of the field.
PWs 17 and 19 were aware of the fact that Jamuna was un willing to deliver possession of the field.
This is borne out by the fact that at the time of the alleged delivery on June 22, 1962, police assistance was applied for and obtained.
From the foregoing it is clear that Jamuna was in effective possession of the field on the date of the occurrence.
But it was urged on behalf of the prosecution that rightly or wrongly PW 17 had taken possession of the property on June 22, 1962, and therefore, if Jamuna had any grievances, he should have agitated LISup(CI)/68 15 462 the same in a court of law, and that his relations had no right to take law into their own hands.
This contention is based on a misconception of the law.
If by the alleged delivery PW 17 could not be held to have been put in possession of the field, he could not be said to have been in possession of the same.
The fact that some formalities were gone through in pursuance of an unauthorised order issued by PW 5 is no ground for holding that possession of the field had passed into the hands of PW 17 Steps taken by PW 17 and others who accompanied him on June 22, 1962 were unauthorised acts.
It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner.
But stray ,or even intermittent acts of trespass do not give such a right against the true owner.
The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner.
A casual act of possession would not have the effect of interrupting the possession of the rightful owner.
The rightful owner may re enter and reinstate himself provided he does not use more force than necessary.
Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost.
The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force.
It is not the case of the prosecution that between June 22 and July 1, 1962 the complainant or his men had been to the field in question.
We have earlier seen that PWs 17 and 19 had unsuccessfully tried to intimidate Jamuna on June 30, 1962 to deliver peaceful possession of the field.
It is only thereafter on July 1, 1962, they along with their friends went to the field with a tractor, and at that time PW 19 was armed with a pistol for which he had no licence.
It was at that stage, the appellants who are close relations of Jamuna came to the field, some armed with sticks and others with spears.
They first asked the complainant 's party to clear out of the field, but when they refused, they pushed them and thereafter attacked them as a result of which PW 17, PW 19 and the tractor driver Acharya were injured (see evidence of PW 19, R. P. Dutt).
The injuries caused by them were held to be simple injuries.
From the proved facts, it is evident that PWs 17 and 19 had gone to the field with their friends, PW 19 being armed with a 463 deadly weapon, with a view to intimidate Jamuna and to assert their possession.
Therefore they were clearly guilty of criminal trespass.
They also constituted an unlawful assembly.
The law relating to defence of property is, set out in section 97 IPC, which says that every person has a right, subject to the restrictions contained in section 99, to defend First his own body, and the body of any other person, against any offence affecting the human body; Secondly. the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief.
or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
Section 99 of the Code lays down that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
It further lays down that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
It was urged on behalf of the prosecution that even assuming that Jamuna was in possession of the field in view of the delivery that had taken place on June 22, 1962, he and his relations had enough time to have recourse to the protection of the public authorities and therefore the appellants could not claim the right of private defence.
The case of Jamuna and the appellants was that they were unaware of the alleged delivery on June 22, 1062.
Admittedly neither Jamuna nor any of the appellants were present at the time of that delivery.
Nor is there any evidence on record to show that they were aware of :the same.
Further, as seen earlier, the conversation that PWs 17 and 19 had with Jamuna on the day prior to the occurrence, proceeded on the basis that Jamuna was still in possession of the field.
Under these circum stances when the complainant party invaded the field on July 1 1962, Jamuna 's relations must have been naturally taken by surprise.
Law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities.
The right of private defence serves a social purpose and that right should be liberally construed.
Such a right not only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen.
There is nothing more degrading to the human spirit than to run away in the face of peril.
In Jai Dev vs State of Punjab (1), this Court while dealing with the right of defence of property and person observed (at p. 500) "In appreciating the validity of the appellants ' argument, it would be necessary to recall the basic assump (1) 464 tions underlying the law of self defence.
In a wellordered civilised society it is generally assumed that the State would take care of the persons and properties of individual citizens and that normally it is the function of the State to afford protection to such persons and their properties.
This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself.
He is entitled to resist the attack and defend himself.
The same is the position if he has to meet an attack on his property.
In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property.
That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
The exercise of the right of private defence must never be vindictive or malicious." In Horam and others vs Rex(1), a division bench of the Alla habad High Court observed that where a trespasser enters upon the land of another, the person in whom the rightful possession is vested, while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force and if in doing so, he inflicts such injuries on the trespasser as are warranted by the situation, he commits no offence.
His action would be covered by the principle of private defence embodied in sections 96 to 105 IPC.
Similar was the view taken by a division bench of the Hyderabad High Court in Sangappa and Ors.
vs State(2).
Therein it was held that if some body enters on the land of a person who does not acquiesce in the trespass he would still retain possession of the land and as the possessor of the land, is entitled to that possession.
If he brings friends with him and with force of arms resists those who are trespassing on the land, who are also armed, he and his friends would not be guilty of forming themselves into an unlawful assembly, for those who defend their possession are not members of an unlawful assembly.
If the person acquiesces in his dispossession and subequently, under claim of title comes again to dispossess his opponents, then he and his friends would be members of an unlawful assembly.
That is also the view taken by the Madras High Court in re.
Mooka Nadar(3) We are in agreement with the ratio of those decisions.
(1) (2) I.L.R. (3) A.I.R. 1943 Mad.
465 On the basis of the proved facts it cannot be said that the appellants had exceeded their right of private defence.
In the result, this appeal is allowed, the conviction of the appellants is set aside and they are acquitted.
R.K.P.S. Appeal allowed.

dataset_name: IN-Abs

summary:
Certain land which was evacuee property acquired by the Central Government under the Displaced Persons Act, 1954 and under the management of the Managing Officer, was purchased by A at a public auction on January 2, 1961.
Pro visional delivery of the property was given to the vendee on October 10, 1961.
A sale certificate was issued to him on February 8, 1962, and the actual delivery was given on June 22, 1962, on a warrant issued by the Managing Officer.
On July 1, 1962, when A, accompanied by a party, went to the land with a tractor to level the land, the appellants attacked the complainant 's party and caused injuries to some of them.
Upon their subsequent prosecution, the plea taken on their behalf was one of private defence.
Their case was that their relation J was the tenant in the land for over 30 years and his tenancy was never terminated; there was no delivery on June 22, 1962, and the alleged delivery was without the authority of law and of no effect; J therefore continued to be in possession of the property on July 1, 1962.
The appellants had therefore used minimum force to prevent the cormplainant 's party from taking forcible possession of the land.
The Courts below accepted the prosecution version and convicted the appellants under sections 447 and 324 read with 149 and 148 IPC.
On appeal to this Court, HELD : Allowing the appeal : On the basis of the proved facts it could not be said that the appellants had exceeded their right of private defence.
[465 A] It was not disputed that J was in possession of the field on June 22, 1962 and the record established that he continued to be the tenant of the land even after the sale in favour of A.
After the issue of the sale certificate to A, the Government had no interest in the land and the managing officer was not therefore competent to evict J. He bad no interest in the land on June 22, 1962 and could not have issued any warrant for the delivery of the field on that date.
The alleged delivery therefore had no legal force; in the eye of the law it was non est.
[461 B] There was no force in the contention that the delivery in question was effected under section 19(3) of the Displaced Persons Act, 1954.
The provisions of that Section apply only to properties which are under the control of the managing officers or managing corporations and not to properties which have ceased to be evacuee properties.
Furthermore, it was not 456 shown that any action under sub sections (1) and (2) of section 19, which was a condition precedent for taking action under sub section (3), had been taken against J. [460 H] Normally before a tenant can be evicted from his holding his tenancy must be terminated and the eviction should be done through a Court of competent jurisdiction.
A who had become the owner of the land long before June 22, 1962 could not have evicted J from the land in the manner alleged.
(459 E] Lallu Yeshwant Singh vs Rao Jagdish Singh and others; , It could not be said that as A had, rightly or wrongly, taken on of the property on June 22, 1962, J should have agitated the matter in a court of law and the appellants had no right to take the law in their own hands.
The fact that some formalities were gone through in pursuance of an unauthorised delivery order was no ground for holding that possession of the field had passed to A.
It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner.
But stray or even intermittent acts of trespass do not give such a right against the true owner.
The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner.
A casual act of possession would not have the effect of interrupting the possession of the rightful owner.
The rightful owner may re enter and reinstate himself provided he does not use more force than necessary.
Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost.
The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force. [462 B E] From the proved facts, it was evident that A and his party, of whom one was armed, had gone to the field with a view to intimidate J and to assert their possession.
They were therefore guilty of criminal trespass and also constituted an unlawful assembly.
The appellants were therefore entitled to prevent hem, by using necessary force, from taking possession.
[462 HI In re Jogali Bhaigo Naiks and Anr.
AIR 1927 Mad.
97, Jai Dev vs State of Punjab, ; Horam and others vs Rex, ; Sangappa and Ors.
vs State, ILR ; in re Mooka Nadar, AIR, 1943 Mad. 590, relied upon.


judgement:
Appeal No. 599 of 1961.
Appeal from the judgment and order dated March 13, 1958, of the Bombay High Court in I.T. R. No. 40 of 1957.
R. Ganapathy Iyer and R. N. Sachthey, for the appellant.
A. V. Viswanatha Sastri and I. N. Shroff, for the respondent.
September 17.
The judgment of the Court was delivered by 85 HIDAYATULLAH, J.
This is an appeal on a certificate of fitness granted by the High Court of Bombay against the judgment of the High Court dated March 13, 1958, on a reference, made by the Income Tax Appellate Tribunal.
The Commissioner of Income Tax, Bombay City I, is the appellant and the jubilee Mills Ltd., Bombay, the respondent.
The only question raised in this appeal is the application of s.23A of the Income tax Act to the assessee company.
The assessee company is a limited liability company with a paid up capital of Rs. 15,25,000/ .
Its paid up capital is made up as under: I Lakh Ordinary Shares of Rs. 10 each Rs. 10,00,000 5,000 Cumulative Preference Shares of Rs. 25 paid up.
Rs. 1,25,000 4,000 Second Preference Shares of Rs. 100 each fully paid up.
Rs. 4,00,000 The Second Preference Shares do not entitle the holders to vote.
Thus shares of the assessee company carrying votes are 1,05,000.
This was the position on June 30, 1947.
We are concerned with the assessment year 1948 49 corresponding to the previous year ended on June 30, 1947.
In that year, the company was assessed on a total income of Rs. 7,47,639/ .
The Income Tax Officer calculated the tax at Rs. 3,27,091, and t`e balance available for distribution was Rs.4,20,548.
In that year, the company ought, if section 23A was applicable, to have distributed 60% of the above amount.
The company, however, declared dividends which in the aggregate amounted to Rs. 24,750.
The Income Tax Officer, with the previous approval of the Inspecting Assistant Commissioner applied the provisions of section 23 A of the Income Tax Act and held that the company was deemed to have declared dividend of Rs. 3,97,788/ .
The assessee company was being managed by a firm called Mangaldas Mehta & Co. That firm 86 consisted of 14 partners of whom seven were the directors of the assessee company.
The members of the Managing Agents who were also directors held between them 35,469 ordinary shares and 880 First Preference Shares.
The remaining seven members of the Managing Agents, who were not directors of the assessee company, held respectively 41,659 and 370 shares of the two categories.
75 shares were held by Girdhardas & Co. Ltd. to which company admittedly section 23 A was applicable.
Some of the members of the Managing Agency firm held on behalf of their minor children or on behalf of their joint families 9,899 Ordinary Shares and 937 First Preference Shares.
The following is a detailed break up of the share holdings: Category 'A ' ; Share in Shares held by Directors Holding the part Holding who are partners in the of nership of the firm of Managing Agents ordinary of firm 1st Pre shares of Mg.
ference Agents ' Shares firm 1. ,, Shri Homi Mehta 50 8/128 Nil 2. ,, Sheth Mathuradas Man galdas Parekh 6,466 14/128 273 3.
,, Madanmohan Mangaldas 11,052 14/128 273 4. ,, Madhusudan Chamanlal Parekh 3,616 7/128 20 5.
,, Mahendra Chamanlal Parekh 3,616 7/128 20 6.
,, Surendra Man galdas Parekh 7,053 14/128 274 7.
,, Indrajit Chamanlal Parekh 3,616 7/128 20 35,469 880 87 Category 'B ': Share in Shares; held by the partners Holding the part Holding of the Managing Agents of Ordi nership of the firm excluding the holding nary firm of 1st Pref.
of the Directors who are shares Mg.
Shares.
also partners as shown Agents ' above.
firm 1.
Shri Harshavadan Mangaldas 11,053 14/128 274 2.
Savitagavri Chamanlal Parekh 3,750 7/128 16 3.
Shri Viren a minor by dra Chaman his mother lal Parekh and guardian Mrs.
Savitaga vri Chaman lal Parekh.
6,328 7/128 20 4.
Shri Man mohan Chamanlal Parekh do 4,462 7/128 20 5.
Shri Kamalnayan Chamanlal Parekh do 4,962 7/128 20 6.
Shri Nutan Chamanlal Parekh do 4,962 7/128 20 7.
Shri Hussein Essa 6,142 8/128 Nil 41,659 370 88 Category 'C ': Shares represented by the Holding of Pref.
Shares Directors ordinary Holding of Shares the 1st.
Sheth Madhusudan Chamanlal Parekh (No. 4 in 'A ' above) as Karta of the joint Family estate of Sheth Chamanlal Girdhardas Parekh 3,899 937 2.
Sheth Mathuradas Mangaldas Parekh (No. 2 in 'A ' above) as guardian and father of minor, Ben Purnima Mathuradas 1,000 3.
do do Ben Veena 1,000 4.
do do Ben Sunita 1,000 5.
do do jagatkumar Mathuradas 1,000 6.
Sheth Surendra Mangaldas Parekh (No. 6 in 'A ' above) As guardian and father of minor Darshan Surendra Parekh 1,000 7.
do as guardian and father of minor Ben Babi Surendra Parekh 1,000 9,899 937 It appears that in the past the assessee company incurred heavy losses and it had to reconstruct its capital in 1930 because it had a debit balance of Rs. 12,75,OOO in the Profit and Loss Account which had to be paid out of capital.
This was done by reducing the face value of the Ordinary Shares from Rs. 100 to Rs. 10 each and of the Preference Shares from Rs. 100 to Rs. 25 each, after obtaining the approval of the High 89 Court ' It is the reconstituted capital which has been shown by us in an earlier part of this judgment.
It also appears that Income Tax Officer granted to the assessee company a rebate of one anna under proviso (a) to paragraph (B) of part (1) of the, Second Schedule of the Finance Act, 1948.
This rebate was granted to those companies to which the provisions of section 23 A were not applicable.
Subsequently, the Income Tax Officer, as stated already,, applied section 23 A to this company and it was contended that he was incompetent to do so as he must be; deemed to have impliedly held already that section 23 A was not applicable.
Section 23 A before its amendment in 1955, in? so far as it is material read as follows: "23A. Power to assess individual members of certain companies. (1) Where the Income tax Officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any company up to the end of the sixth month after its accounts for that previous year are laid before the company in general meeting are less than sixty per cent of the assessable income of the company of that previous year, as reduced by the amount of income tax and super tax payable by the company in respect thereof he shall, unless he is satisfied that having regard to losses incurred by the company in earlier years or to the smallness of the profit made, the payment of a dividend or a larger dividen d than that declared would be unreasonable, make with the previous approval of the Inspecting Assistant Commissioner an order in writing that the undistributed portion of the assessable income of the company of that previous year as computed for income tax pur poses and reduced by the amount of income tax and super tax payable, by the company in respect thereof shall be deemed to have been distributed as dividends, amongst the shareholders as at the date of the general meeting aforesaid, and 90 thereupon the proportionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income: x x x x x x x x Provided further that this subsection shall not apply to any company in which the public are substantially interested or to a subsidiary company of such a company if the whole of ' the share capital of such subsidiary company is held by the parent company or by the nominees thereof Explanation.
For the purpose of this sub section, a company shall be deemed to be a company in which the public are substantially interested if shares of the company (not being shares entitled to a fixed rate of dividend, whether with or without a further right to participate in profits) carrying not less than twenty five per cent of the voting power have been allotted unconditionally to, or acquired unconditionally by, and are at the end of the previous year beneficially held by the public (not including a company to which the provisions of this sub section apply), and if any such shares have in the course of such previous year been the subject of dealings in any stock exchange in the taxable territories or are in fact freely transferable by the holders to other members of the public.
" We are really concerned with the application of the Explanation to the facts of this case.
The Explanation, is so far as it is relevant to our purpose, says that a company shall be deemed to be a company in which the public are substantially interested if the 91 shares of the company carrying not less than 25% of the voting power have been allotted unconditionally, to or acquired unconditionally by the public and are: held beneficially by the public.
The Income tax Officer held that this was not a company in which the public were substantially interested and that the grant of the rebate earlier by him did not estop him from applying section 23A to this company.
His order was upheld by the Appellate Assistant Commissioner and the Tribunal on both the points.
The assessee company then applied for a reference and the Tribunal referred the following questions for decision by the High Court: "(1) Whether, on the facts and in the circums tances of the case, the Income tax Officer was competent to pass an order under Section 23A(1) of the Act after having allowed a rebate of one anna per rupee in the assessment under the proviso (a) to paragraph (B) of Part I of the Second Schedule of the Finance Act, 1948? (2) If the answer to question No. 1 is in the affirmative whether on the facts and in the circumstances of the case, the assessee com pany is a company in which the public are substantially interested for the purposes of Section 23A of the Act? (3) Whether the loss of Rs. 12,75,000 incurred by the company prior to its reconstruction in 1930, could be taken into consideration for purposes of the applicability of Section 23A (1) of the Act?" The High Court, by the judgment under appeal answered the first two questions in the affirmative and in view of the answer to Question No. 2 it considered it unnecessary to answer the third.
The Commissioner of Income Tax obtained a certificate of fitness and filed the present appeal.
92 The answer to the first question is in favour of the Commissioner of Income Tax.
The other side has not appealed and Mr. Vishwanath Sastri for the assessee company conceded before us that the High Court was right.
The third question depends on the answer to the first question but as it has not been answered by the High Court we do not consider it necessary to answer it here for the first time.
We shall now address ourselves to the second question.
The Tribunal in dealing with the question whether the public could be said to hold 25% or more of the voting power in the assessee company took into consideration a decision of the Privy Council in Commissioner of Income Tax vs H. Bjordal,(1) and held that though directors, qua directors, do not cease to be members of the public, the holding of the group of 14 individuals who collectively formed the Managing Agency firm of Mangaldas Mehta & Co. could not be counted as held by the members of the public in this case for purposes of the Explanation.
The Tribunal was further of the opinion that this group of persons had a 'juristic personality ' and it should be taken into account as a group in determining where the Controlling power vested according to the test laid down by the Privy Council in the said case.
The High Court reversed the decision of the Tribunal following its earlier decision reported in Raghuvan8hi Mills Ltd. vs Commissioner of Income Tax(2).
In that case the High Court had held that directors, qua directors must be contrasted with the public and if the directors held more than 75% of the voting power then alone the company could be said to be one in which the public were not substantially interested.
The High Court 's view was that the Managing Agents act under the direction of the directors and unless the directors were themselves controlling the voting power above the limit stated by the Explanation, the company must be regarded as one in which (1) (2) 93 the public were substantially interested.
Applying the same test to the present case, the High Court found that the directors between them held only the shares which we have shown in tabular form: under category 'A '. 'Since the number of these shares was not up to the mark to, attract section 23A, the High Court answered the second question in favour of the assessee company.
The request of the Department that a supplemental statement of the case be asked from the Tribunal as to whether any person belonging to categories 'B ' and 'C ' was so much within the control of the directors as not to hold the shares unconditionally or beneficially for himself was rejected by the High Court observing that this would give a second chance to the Department to lead further evidence.
Following the decision of the House of Lords in Thomas Fattorini (Lancashire) Ltd. vs Inland Revenue Commissioner.
(1) they refused to take action under section 66 (4).
The High Court took notice of the fact that the Privy Council in Bjordal 's case (supra) had indicated a test to determine what is meant by "public" which was different from that indicated by them in Raghutanshi case (supra).
They, however, held that after 1950 the decisions of the Privy Council had only a persuasive authority and the decision of the High Court was binding in the absence of ' a decision by this Court.
They therefore, applied their own ' decision in Raghuvanshi Mill 's case and decided this case Accordingly.
It may be pointed out that the High Court did 'appreciate the point of view expressed by tile Privy Council in the above mentioned case.
They observed as follows: "It may be that our view is erroneous; and it may be and very probably it is that the view taken by the Privy Council is the right one.
But, as we have said, so long as the judgment of the Bombay High Court stands,it was the duty both of he Department and of the Tribunal to give effect to that decision." (1) , 94 Section 23A is not applicable to a company in which the public are substantially interested.
What is "substantial" interest of the public is stated in the Explanation.
That interest represented in terms of the share holding must not be less than 25% of the total number of the shares, but no person can be said to belong to the "public" unless he holds the shares unconditionally and beneficially for himself.
What is meant by (unconditionally" and "beneficially" was explained by this Court in an appeal against the decision of the High Court of Bombay in the Raghuvanshi Mills ' case.
The decision of this Court is reported in This Court pointed out that by the words "unconditionally" and "beneficially" is indicated that the voting power arising from the holding of those shares should be free and not within the control of some other shareholder and the registered holder should not be a nominee of another.
It was pointed out again by this Court in Shri Changdeo , Sugar Mills Ltd. vs commissioner of Income Tax Bombay, (1) that by "unconditional" and. "beneficial" holding is meant that the share,, are held by the holders for their own benefit only and without any control of another.
This Court approved the decision of the Privy Council in Bjordal 's case that directors, qua directors, are not without the pale of the public.
This Court pointed out that what one has to find out is whether there is an individual who, or a group acting in concert which, controls or control the affairs of the company to the exclusion of others by reason of his or their voting power.
Such person or group of persons do not answer the description "public.
" There is nothing inherent in the office of directors which would lead one to think that the directors must act in unison.
They are persons in whom the shareholder,% have reposed confidence and on whom they have conferred powers which under the scheme ' of the Companies Act, have to be exercised for the benefit (1) [1961] 41 95 of the shareholders.
The directors are, in a manner of speaking, trustees of these powers.
It is the duty of the directors to exercise these powers to the best of their independent judgment.
There is therefore, . nothing in the nature of things or at all that requires the directors to act in unison.
This Court pointed out in the Raghuvanshi Mills 'case (1) that such a group may be composed of directors or their nominees or relations in different combinations or may be composed of persons none of whom is a director provided such a group forms a block which holds the controlling interest in its hands.
It would, therefore, follow from what we have stated that we have first to see whether there is an individual or a group holding the controlling interest which group acting in concert can direct the affairs of (lie company at its will.
The controlling interest, of course, is effective only if the group owns 51 of the total shares.
But the company will still lie a company in which the public can be said to be substantially interested because lo cease to be so the holding of the group must be more than 75 %.
In the group, any person be he a director or a nondirector, a relative of a director, a promoter of the company or a, stranger, may be included but only if belonging to a group or as holding the shares as a nominee of someone else belonging to the group.
We have indicated again the true test which was not applied in the judgment of the Bombay High Court in the Raghuvansi Mills ' case( ) and applying which we reversed that decision.
Applying the above test, we have to see whether there is such a group in this company.
It is obvious from what we have said that category 'A ' which consisted of the directors could not be regarded as outside "public" merely by reason that they were directors.
But there is, however, an intimate connection between category 'A ' and category 'B ' in as much as both are members of the Managing Agency (1) (2) 96 firm.
In other words, there is evidence of yet another group, namely, the group of shareholders who constitute the Managing Agency firm.
We agree with the High Court that Managing Agents act under the control and direction of the directors.
The Managing Agents are also appointed by the company.
The control of the affairs of a company is ordinarily in the hand of the directors of the company but there may be cases in which the Managing Agents, by reason of their superior holding of shares, may be able to appoint the directors and generally to control the views of the directors.
Where the 'Managing Agents hold an interest which is small and is thus not capable of exercising an overriding power, other evidence may be required to show that they, in conjunction with others, are running the affairs of the company to the exclusion of the public.
Where, however, the Managing Agents admittedly hold 51 % or more of the shares, it is obvious that the controlling interest belongs to the Managing Agents. ' When, therefore, the Managing Agents, either by themselves or with those who act in concert with them, hold shares above the 75% limit they can be regarded as constituting a group which cannot be counted as " public".
In such a case the holding of the Managing Agents, if above 75%, may furnish proof that the company is one in which the public are not substantially interested.
It was contended before us that even among the Managing Agents some may take an independent view.
Normally Managing Agencies are not formed by parties except for the purpose of mutual gain and the commonness of the interest lends a cohesion.
to the body which enables it to act in its own interest.
When such a body holds shares carrying more than 75% of the voting power the company itself is run mainly as the Managing Agents desire it to be run.
Such a Managing Agency could easily choose its own directors and the directors would not be independent persons but mere nominees of the 97 Managing Agents.
In such a case the inference is irresistible that we have a group, which as a group, can run the company at its will and which not only controls the voting at the meeting of the shareholders but, by selecting its own directors, gets the directors to act according to its own desires.
No member of such a Managing Agency firm can be regarded as belonging to "the public" and when this happens the company comes within the reach of section 23A.
Applying the above test to the present case, it is clear that the Managing Agents, between them hold 77,128 out of 1,00,000 ordinary shares, well above the limit.
They have in addition 1,250 First Preference Shares out of 5,000 which also carry voting power.
To this must be added 75 shares held by Girdhardas & Co. Ltd. to which section 23A is admittedly applicable.
This brings the total holding to 78,453.
75% of the total shares bearing votes is 78,750.
This shows that the holding of the Managing Agents is short by 298 shares for the application of the Explanation to section 23A.
But when we turn to category "C" we find that 6,000 shares were held by the members of the Managing Agency on behalf of minor children and the voting power arising from these shares was in their own hands as guardians.
There is no doubt that in the present case shares carrying more than 75% of the voting power are held by persons who form a group in the sense indicated by this Court in Raghuvanshi Mills case and by us here.
The reason is this: Shares carrying more than 75% of the voting power are held by the partners of the managing agency or persons under its control.
Now it seems to us that it is to the interest of the partners of this firm to exercise their voting power in one way, namely the way that brings to them the largest profit out of the company.
It is true that the managing agents are the servants of the company in a manner of speaking and not its masters and also that the object of a firm of managing agents is to carry out certain administrative 98 duties concerning the company under the control of the directors of the company.
That however is irrelevant and in any case is far from the truth in the present case.
Here the partners of the managing agency practically own the company.
At the hearing a point was raised that it has to be proved as a fact that the persons constituting the oil which owns shares carrying more than seventyfive percent of the voting power, were acting in unison.
The test is not whether they have actually acted in concert but whether the circumstances are such that human experience tells us that it can safely be taken that they must be acting together.
It is not necessary to state the kind of evidence that will prove such concerted actings.
Each case must necessarily be decided on its own facts.
The exclusion of "public" in the manner indicated generally from more than 75% of the shares and the concentration of such a holding in a single person or a group acting in concert is what attracts section 23 (A).
In our opinion the High Court was not right in answering the second question in the affirmative.
The appeal is allowed.
The answer of the High Court is sit aside and the question is answered in the negative.
The respondent shall pay the costs here and in the High Court.
Appeal allowed.

summary:
Section 23A of the income tax Act, 1922, empowered the Income tax Officer to assess individual members of a company in respect of undistributed assessable income of the company in certain circumstances.
The proviso to this section made section 23A inapplicable to a company in which the public was substantially interested.
The explanation to the proviso laid down that a company shall be deemed to be one in which the public was 84 substantially interested if the shares of the company carrying not less than 25% of the voting power had been allotted unconditionally to or acquired by the public and were held beneficially by the public.
It was found that though the directors 'of the company 's qua directors did not hold more than 75% of the shares, the shares held by such directors as were partners in the firm of the Managing Agents of the company together with the shares held by other partners of the Managing Agents and the shares held by the members of the Managing Agency on behalf of minor children exceeded 75% of the voting power.
Held, that the company was not one in, which the public was substantially interested and section 23A was applicable to it.
No person could be said to belong to the "public" unless he held the shares unconditionally and beneficially for himself.
The words "unconditionally" and "beneficially" indicated that the voting power arising from the holding of those shires should be free and not within the control of some shareholder and the holder should not be a nominee of another.
Directors, qua directors, were not without the pale of the public as there was nothing that required them to act in unison.
What had to be seen was whether there was any individual or a group holding the controlling interest which group acting in concert could direct the affairs of the company at its will.
The partners of the Managing, Agency constituted a group holding more than 75% of the voting power in the company and they could not be counted as public as they must be taken to act in their own interest in unison".
Commissioner of Income tax vs H. Bjordal, [1955] 28 I. T. R. 25, referred to.
Shri Changdeo Sugar Mills Ltd. vs Commissioner of Income tax, Bombay, [1961] 41 and Raghuvanshi Mills Ltd. vs Commissioner of Income tax [1961] 41 , relied on.