judgement:
N: Criminal Appeal No. 420 of 1974.
Appeal by Special Leave from the Judgment and Order dated 27 11 74 of the Allahabad High Court in Criminal Appeal No. 2646/73 and Referred No. 95/73.
Frank Anthony, E.C. Agarwala and A. T. M. Sampath; for the Appellants.
O.P. Rana; for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, J.
The appellants, Subhash and Shyam Narain, were convicted by the learned Civil and Sessions Judge, Farrukhabad under section 302 of the Penal Code on the charge that at about 9 a.m. on June 9, 1972 they committed the murder of one Ram Sanehi.
Subhash was sentenced to death and Shyam Narain to imprisonment for life.
The judgment of the trial court having been confirmed in appeal by the High Court of Allahabad, the two accused have filed this appeal by special leave of this Court.
588 The case of the prosecution is briefly as follows: on the morning of June 9, 1972 the deceased Ram Sanehi had gone to his field along with his son Bal Kishore and his daughter Kusuma Devi for eating Kharbuzas.
While they were returning from the field at about 9 a.m. the appellants, who were lying in wait near a culvert, suddenly accosted Ram Sanehi.
The Appeallent Subhash pointed the barred of his gun towards the chest of Ram Sanehi and said that since he, Ram Sanehi, was a witness against him in a complaint filed by Pooran Lal and since he was also doing Pairvi on behalf of Pooran Lal he would not be allowed to remain alive.
The appellant Shyam Narain was armed with a lathi.
Bal Kishore and Kusuma Devi pleaded with the appellants to spare their father but Shyam Narain asked Subhash not to delay the matter and finish Ram Sanehi quickly.
Subhash thereupon fired three shots from his double barrelled gun, the last of which misfired.
Ram Sanehi fell down, whereupon the appellants dragged him by his legs over a distance of 6 or 7 paces.
Bal Kishore and Kusuma Devi then raised an alarm whereupon Brij Bhusan, Shyam Lal Mangali Prasad and Jhabbo Singh Thakur reached the place of occurecnce and challenged the appellants.
Before running away, the appellant Subhash told his companion Shyam Narain that he on his own part was going to surrender before a court and that Shyam Narain should make his own arrangements.
Ram Sanehi died within about 10 minutes after receiving the injuries.
Bal Kishore first went to his house which is at about a distance of 120 yards from the scene of offence.
At about 12 o 'clock at noon he went to the Kamalgani police station and lodged his First Information Report (exhibit Ka 3).
S.I. Vishwanath Sharma who was posted as a 2nd officer at the police station recorded Bal Kishore 's complaint.
went to the scene of occurrence, prepared the inquest report and handed over the dead body for being sent for post mortem examination to the District Hospital at Farrukhabad which is about 10 miles away form the village of Kandharpur where the incident took place.
S.I Sharma took samples of earth from the place of occurrence an seized a mis fired cartridge which was lying concealed in the folds of the deceased 's Dhoti.
The Fard in that behalf is exhibit Ka 10 and the site plan is exhibit Ka 11.
The appellant Subhash surrendered before the Additional District Magistrate (Judicial) at Farrukhabad at about 4 p.m. on the very day.
The appellant Shyam Narain was arrested at about 2 40 p.m. on the same day under section 122 of the Railway Act for crossing The railines at Fatehgarh.
The appellants denied the charge that they had committed the murder of Ram Sanehi and stated that they were involved in the case due to enmity.
This defence has been rejected both by the Sessions Court and the High Court.
Before referring to the evidence in the case it has to be mentioned that the High Court had before it not only the appeal filed by the accused but also a reference made by the Sessions Court for confirma tion of the capital sentence under section 374 of the Code of Criminal 589 Procedure.
Time and again this Court has pointed out that on a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of sections 375 and 376 of the Criminal Procedure Code.
Under these sections the High Court must not only see whether the order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court 's appraisal and assessment of that evidence.
From the long line of decisions which have taken this view it would be enough to refer to the decisions in Jumman and ors.
vs The State of Punjab, Ram Shanker Singh & ors.
vs State of West Bengal and Bhupendra Singh vs The State of Punjab.
The High Court has failed to show due regard to this well established position in law.
It did not undertake a full and independent examination of the evidence led in the case and it mainly contented itself with finding out whether the Sessions Court had in any manner erred in reaching the conclusion that the charge of murder levelled against the appellants was established beyond a reasonable doubt.
The High Court is right in saying that the main question in the case was whether Bal Kishore and Kusuma Devi who were examined as eye witnesses were truthful witnesses.
But then it did not subject their evidence to any minute scrutiny.
Impressed overbearingly by the circumstance that the Sessions Court "had the opportunity of observing the demeanour" of the witnesses, the High Court apparenty thought that such an opportunity gave to the Sessions Court 's judgment a mystical weight and authority, even though the learned Sessions Judge had not, in his judgment or while recording the evidence, made any special reference to the demeanour of the witnesses.
The High Court accepted the evidence of Ram Sanehi 's children by observing that there was no material contradiction ill their evidence and that certain statements in the F.I.R. afforded a guarantee that the two witnesses were present when their father was done to death.
We will now proceed to show how several significant circumstances either escaped the attention of the High Court or were not given their due and rightful importance.
First as to the manner in which S.I. Sharma conducted investigation into the case.
The offence took place at about 9 a.m. on June 9 and though the District Hospital at Farrukaabad was just 10 miles away, the dead body was not received at the hospital for nearly 24 hours after the incident had taken place.
The excuse offered by the prosecution that cartman was not willing to take the body at night is utterly flimsy because the Investigating officer could have easily made some alternate arrangement for despatchin the dead body for postmortem examination expeditiously.
With the dead body lying at the scene of offence for nearly 12 hours and thereafter at the police station for another 8 or 9 hours, it was easy enough for the witnesses to mould 590 their statements so as to accord with the nature of injuries.
The lnvestigating Officer did not make any note at all in the General Diary as to which witnesses were examined by him on the date of the occurrence which was obligatory upon him to do under paragraph 44 of the U.P. Police Act.
The time when the investigation was commenced and the time when it was concluded are not mentioned in the case diary.
The time when the Investigating officer reached the village and the time when he returned to the police station are also not noted in the case diary.
S.I. Sharma stated in his evidence that several important facts concerning the investigation were being stated by him in his evidence from memory.
He reached the scene of offence at about 2 30 p.m. but it was not until about 6 p.m. that he inspected the site.
The dead body was not removed from the scene of offence till about 9 p.m. and even that is open to grave doubt because the Investigating officer has admitted in his evidence that he was unable to say as to when the dead body was taken way from the spot and whether it was taken directly to the hospital or was detained somewhere on the way.
He was unable to say whether it was right or wrong that the dead body remained in the village till about 4 'O 'clock on the morning of the 10th.
Forty or fifty persons had gathered at the scene of offence when the Investigating officer arrived but the record of the case does not show that the statement of any of those persons was ever recorded.
In fact even the statement of Kusuma Devi was recorded late at night for which the reason is stated to be that her elder sister Pushpa Devi died of shock on the evening of the 9th after hearing of her father 's murder.
It may be that Pushpa Devi died on the 9th, but apart from the cause of her death, the statement of Kusuma Devi need not have been held up so long.
We are doubtful if the Investigating officer at all knew on the 9th that Pushpa Devi had died.
He has admitted that his knowledge in that behalf was derived from hearsay reports.
The appellant Subhash had surrendered before the Additional District Magistrate, Farrukhabad on the afternoon of the 9th itself while the other appellant Shyam Narain was arrested at Fatehgarh at about 2 40 p.m.
The Investigating officer did not even know of these significant developments, though they had taken place just a few miles away from the scene of investigation.
He says that he learnt of the surrender and the arrest of the appellants on the evening of the 12th.
Mangali Prasad has been examined by the prosecution as an eye witness and his name is mentioned in the F.I.R. as one of the four persons who arrived at the scene of offence even before the appellants had run away.
His statement was recorded 11 days later on June 20.
The F.I.R. mentions expressly that the appellants caught hold of the legs of the deceased and started dragging him.
The Investigating officer has not stated in the Panchnama of the scene of offence whether the ground was soft or hard or sandy which had great relevance on the allegation that the deceased was dragged over a certain distance.
Finally, it is surprising that the Investigating officer did not think it worthwhile to pay a visit to the field where the deceased is alleged to have gone with his children for eating Kharbuzas.
Indeed he stated that he was not in a position to say if there were Kharbuzas at all in the field, when the occurrence took place.
591 The High Court has condoned these lapses on the part of the Investigating officer with the observation that he "appears to have been inexperienced and somewhat negligent".
The Investigating officer has stated in his evidence that he had put in 7 years of service.
It is difficult to understand on what basis the High Court attributed the lapses on his part to mere inexperience.
We will presently indicate the significance of the various lapses and loopholes in investigation but to say, as the High Court has done, that the Investigating Officer was "somewhat negligent" seems to us in the circumstances a grave euphemism.
We will now proceed to deal with the various circumstances which, in our opinion, render it unsafe to accept the prosecution case.
Dr. S.C. Pandiya who performed the post mortem examination has described in his evidence the injuries received by Ram Sanehi.
In all he found 7 injuries on the dead body, out of which injuries 1, 3 and 7, injuries 2 and 4, and injuries 5 and 6 are interconnected.
Injury No. 1 is described as a "shot wound" with its entry above the left nipple.
Injury No. 3 is described as multiple rounded abrasions on the left side of the chest.
Injury No. 7 is the wound of exit on the right scapular region, corresponding to injury No. 1.
rnjury No. 2 consists of 8 gunshot wounds of entry below the right nipple while injury No. 4 consists of multiple rounded abrasions above the right nipple.
Injury No. 5 is a gun shot wound of entry on the back of the left forearm while injury No. 6 is the corresponding wound of exit near the ulnar aspect of the left forearm.
The evidence of Dr. Pandiya and the description of the injuries given by him in the post mortem report tend to show that two different kinds of firearms were used by the assailants of Ram Sanehi.
Injury No. 1 was caused by a bullet and that is clear not only from the description of the injury but from what Dr. Pandiya has stated in his evidence.
He says: "The bullet, which had entered through injury No. 1 went out straight after emerging from injury No. 7".
Injuries Nos. 2 and 5 were caused by pellets.
This shows that whereas injury No. 1 was caused by a firearm in the nature of a rifle, injuries 2 and 5 were caused by an ordinary gun.
The medical evidence thus falsifies the eye witnesses ' account according to which, the appellant Subhash alone was armed with a double barrelled gun, the other appellant Shyam Narain being armed with a lathi.
The objective inference arising from the nature of injuries received by the deceased has a significant impact on the case of the prosecution, which has been overlooked by both the Sessions Court and the High Court.
While we are on the medical evidence it would be appropriate to mention that there was no tatooing or charring on any of the firearm injuries which, according to the doctor, shows that the firing was done from a distance of more than 4 feet.
In the First Information Report Bal Kishore has stated that as soon as he, his father and sister, reached the culvert, Subhash "touching the chest" of Ram Sanehi "with the 592 barrel of his gun" said that he shall not leave him alive; Shyam Narain thereupon exhorted Subhash not to delay and fire immediately; Subhash then fired three shots in quick succession, one of which mishred.
The trend of the F.I.R. is that Subhash fired the first two shots at Ram Sanehi from a point blank range, in which event indisputably, there would have been tatooing and charring around the injuries.
Bal Kishore has attempted to offer an explanation that what he meant to say in his compaint was that Subhash trained his gun "towards" Ram Sanehi 's chest and not "on" his chest.
This explanation is an after thought and in the circumstances difficult to accept.
Thus in another important respect, the medical evidence falsifies the case of the prose cution.
There is another aspect of the medical evidence which, though, not as important as the two aspects mentioned above, may also be referred to.
The case of the prosecution is that Ram Sanehi had gone to his Kharbuza field with his son and daughter for eating Kharobuzsas.
There is evidence that they did eat Kharbuzas and almost immediately there after they started back for home.
Within less than 5 minutes, Ram Sanehi met with his deat near the culvert.
The post mortem report shows that Ram Sanehi 's stomach was empty which means that the evidence that he had eaten Kharbuzas just a little time before his death is untrue.
Bal Kishore tried to wriggle out of this situation by saying that Ram Sanehi had eaten just a small slice of Kharbuza.
But even there, Dr. Pandiya has stated that if the entire slice of Kharbuza was eaten by Ram Sanehi, its remains would be found in the stomach provided there was no vomiting after the gun shot injuries.
Since Ram Sanehi had not vomited, his large intestines could not have been found to be empty if the story of his children was true.
This last circumstance may at first sight seem trivial but its importance consists in the fact that the visit of Ram Sanehi, along with his children, to the Kharbuza field for the purpose of eating Kharbuzas is the very genesis of the incident which happened on June 9, 1972.
Coupled with the circumstance that the Investigating officer did not even pay a visit to the Kharbuza field, leave alone making a Panchnama thereof, the conclusion is irresistible that the story that the children had accompanied their father to the Kharbuza field lacks a factual basis.
The other circumstances which render the prosecution case suspect are these (1) Ram Sanehi is alleged to have been drageed over 6 or 7 paces by the appellants but not even an abrasion was found on his back or stomach which could be attributed to dragging.
(2) Thirty or forty persons are alleged to have collected at the sence of occurrence but Bal Kishore was not able to mention the name of even one of them and it is common ground that the Investigating officer did not record the statement of any of them.
(3) Jhabboo Singh, Shyam Lal Brij Bhushan and Mangali Prasad reached the scene of offence even before the appellants had fled away but none from amongst the first three was examined by the prosecution.
Mangali Prasad was examin 593 ed as an eye witness but he has been concurrently disbelieved by the Sessions Court and the High Court.
(4) Though the motive of the offence is alleged to be that in a complaint filed by Pooran Lal against the appellant Subhash, the deceased Ram Sanehi was cited as a witness, Mangali Prasad 's evidence shows that immediately after the firing, Bal Kishore told him that Ram Sanehi was murdered because of the disputes concerning the election to the Pradhanki.
What Bal Kishore told Mangali Prasad immediately after the incident seems more probable because, one Virendrapal had contested that election and the appellant Subhash had defeated him.
When Bal Kishore went to lodge his F.I.R. at the police station he was accompanied by Virendrapal, though an attempt was made to show that Virendrapal was only standing outside the police station and had met Bal Kishore accidently.
(5) The story of Bal Kishore that after the appellant Subhash fired 2 shots he re loaded his gun but the re loaded cartridge misured makes hardly any sense.
Subhash was armed with a double barrelled gun and having fired 2 fatal shots from a close range at his target, it is unlikely that he would re load the gun and that too with only one cartridge.
And if that cartridge misfired, it is impossible to understand how it could be found concealed in the folds of Ram Sanehi 's dhoti.
There is only one other aspect of the matter which remains to be considered and since the High Court has placed great reliance thereon, it is necessary to deal with it.
The F.I.R. which lodged at about 12 O 'clock at noon on the 9th itself mentions that after Ram Sanehi was murdered, the appellant Subhash told his companion Shyam Narain that he himself was going to surrender before a court and that Shyam Narain should make his own arrangement.
In fact, Subhash did surrender in the court of the Additional District Magistrate, Farrukhabad, at about 4 p.m. on the 9th.
What the High Court has over looked is that Subhash did not surrender in connection with the murder of Ram Sanehi but he surrendered along with the 13 or 14 other accused against whom Pooran Lal had filed a complaint.
In so far as Shyam Narain is concerned, the High Court is wrong in saying that he managed somehow to get himself arrested.
The evidence of Constable Virendra Singh shows that Shyam Narain was arrested because he was crossing the railway lines and if he was not caught, he would have been run over by the two trains coming from Kanpur and Farrukhabad.
This was hardly any sensible way of making an "arrangement" for himself, as directed by Subhash.
It is therefore not as if the statement attributed to Subhash in the F.I.R. is corroborated by subsequent events so as to afford a guarantee to Bal Kishore 's presence at the culvert.
We are conscious that the Sessions Court and the High Court have both held that the appellants committed the murder of Ram Sanehi but the weight of the circumstances which we have discussed above is so preponderating that even the concurrent finding cannot be allowed 594 to stand.
In any event, it seems to us impossible to hold that the prosecution has established its case beyond a reasonable doubt.
We therefore allow this appeal, set aside the order of conviction and sentence recorded by the High Court and the Sessions Court and direct that the appellants shall be set at liberty.
M.R. Appeal allowed.

summary:
Ram Sanehi received two gun shot wounds on his chest, and died within ten minutes.
Two of his children claimed to have witnessed the occurrence.
The dead body was subjected to post mortem only after about 24 hours had elapsed.
The same evening, appellant Subhash surrendered, and appellant Shyam Narain was arrested, though for another offence altogether.
The Sessions Court convicted them under section 302 I.P.C. and sentenced Subhash to death and Shyam Narain to imprisonment for life.
The accused moved the High Court in appeal, while the Sessions Court referred the matter to it under section 374, for confirmation of the death sentence.
The question before this Court was, whether in the case of such references, the High Court was obliged to examine the entire evidence independently.
Allowing the appeal, the Court, ^ HELD: On a reference for confirmation of the sentence of death, the High Court is under an obligation to proceed in accordance with the provisions of sections 375 and 376 of the Criminal Procedure Code.
The High Court must not only see whether the other order passed by the Sessions Court is correct but it is under an obligation to examine the entire evidence for itself, apart from and independently of the Sessions Court 's appraisal and assessment of that evidence.
[589A B] Jumman and Ors.
vs The State of Punjab AIR 1957 S.C. 460; Ram Shanker Singh and Ors.
vs State of West Bengal [1962] Supp. 1 SCR 49 at 59 and Bhupendra Singh vs The State of Punjab ; , followed.


judgement:
Appeal No. 317 of 1976.
Appeal from the Judgment and Order dated the 13th Febru ary, 1976 of the Jammu & Kashmir High Court in Election Petition No. 2 of 1972.
M.N. Phadke, Altaf Ahmed and Veerappa for the Appellant.
Ghulam Quadir Mir (In person) for Respondent No. 1.
Ex parte for Respondents 2 5.
The Judgment of the Court was delivered by KHANNA, J.
During the general elections held in March 1972 five candidates, namely, the appellant and respondents No. 1 to 4, contested tile election for the Jammu & Kashmir State Legislative Assembly from Rajpura constituency.
There was a sixth candidate, namely, Mohamed Abdullah Sheikh, respondent No. 5, but his nomination paper was rejected.
The appellant secured 9,079 votes and was declared elected.
Respondent No. 1 was the nearest rival and he secured 8,248 votes.
Respondents 2 to 4 secured 1,340, 1,126 and 1,217 votes respectively.
2,034 votes were declared invalid at the time of counting.
After the declaration of the result of the election, respondent No. 1 filed election petition out of which the present appeal arises.
Two prayers were made in the election petition: (1) that the election of the appel lant be declared to be void; and (2) that respondent No. 1 be declared to have been duly elected.
The High Court accepted the first prayer and declared the election of the appellant to be void.
The second prayer that respondent No. 1 be declared to have been duly elected was not granted.
The present appeal has been filed by the appellant against the judgment of the High Court insofar as it has declared his election to be void.
Cross objections have been filed by respondent No. 1 and it has been prayed on his behalf that he be declared to have been duly elected.
The election petition was founded on the following three grounds: (1 ) Improper rejection of the nomination paper of respondent No. 5.
(2) Improper rejection of the votes which had been cast in favour of respondent No. 1 (hereinafter referred to as the respondent); and (3) Improper reception of the votes in favour of the appellant on the day of polling at the following polling stations: 1.
Lassipora Polling station No. 49 2.
Nowpora Pain Polling station No. 50 299 3.
Drubgham B Polling station No. 24 4.
Drubgham A Polling station No. 23 4.
Drugbham A Polling station No.23 5.
Aliaipora Polling station No. 51 6.
Chandgham Polling station No. 46 7.
Arihal Polling station No. 35, and 8.
Tikan Batapora Polling station No. 26.
According to the case of the respondent as set up in the election petition, the result of the election was materially affected because of the improper rejection at the time of counting of the votes which had been cast in his favour and by the improper reception of the votes in favour of the appellant on the day of polling.
Giving particulars in respect of the third ground, namely, that there was improper reception of votes in favour of the appellant on the day of polling, the respondent stated that the total number of votes at Lassipura (polling station No. 49) was 824.
All those votes were shown to have ben polled, although 162 voters registered in that area did not cast their votes.
The figure of 162 included 16 persons who were dead before the date of polling.
Electoral numbers of those 162 voters, including 16 dead persons, were also mentioned in the peti tion.
The votes of 162 persons were thus stated to have been improperly received.
Similar allegations were made in respect of Nowpora Pain (polling station No. 50), Drubgham B (polling station No. 24), Drubgham A (polling station No. 23), Alaipora (polling station No. 51), Chandgam (polling station.
No. 46), Arihal (polling station No. 35) and Tikan Batapora (polling station No. 26).
We may add at this stage that the first ground, namely, that relating to the improper rejection of the nomination paper of respondent No. 5, was not pressed at the trial of the election petition, and as such no 1onger survives.
The election petition was resisted by the appellant and he denied the various allegations made by the respondent.
He also pleaded that the allegations in the election peti tion were vague, indefinite and uncertain.
Objection was also raised regarding the maintainability of the petition on the grounds that it had not been properly verified and there war misjoinder of parties.
The petition was initially heard by Wasi ud Din J.
It thereafter came up for hearing before Jalal ud Din J.
Ultimately, it came up for hearing before Mufti Baha ud Din Farooqi J. who finally decided the petition and gave the judgment under appeal.
During the pendency of the petition, orders were made on three occasions for inspection of the ballot papers.
The first order was made by Wasi ud Din J. on August 13, 1973.
The learned Judge, considered the prayer for inspection of ballot papers under three heads: "(1) Request for inspection of ballot papers which were rejected at the time of counting; (2) Request for inspection a ballot paper account (Form No. 16) in respect of the var ious polling stations and of the ballot papers relevant thereto; 300 (3) Request for inspection of marked copies of electoral rolls at polling stations Lassipora, Drubgham A & B, Achan, Chandgham, Afthal, Nowpora Pain, Tikam Batopora, Alaipo ra.
" Prayer under the first and third heads was rejected but that under the second head was allowed to the extent of the inspection of form No. 16 in respect of Lassipora, Nowpora Pain, Drubgham B, Drubgham A, Alaipora, Chandgham, Arihal and Tikan Batopora polling stations.
Inspection of a few ballot papers, of which the numbers were specified, relating to some of the polling stations was allowed.
On November 2, 1973 the learned Judge amplified his previous orders in these words: "My order as it stands should be read to Clearly signify which I am amplifying here also that the sorting of the ballot papers will be done by the Deputy Registrar but in the presence of the learned counsel for both the parties.
The learned counsel for the parties will not be allowed to handle the ballot papers until they are sorted out by the Deputy Registrar and after this is done, the respective learned counsel for the parties can handle and inspect the ballot papers.
" On June 13, 1974 the learned Judge, on an application made by the respondent, allowed inspection of ballot papers of two more polling stations, viz., Chandgham and Alaipora.
The respondent also made prayer for leave to inspect the ballot papers of other polling stations, but the prayer in that behalf was rejected.
The following directions were further issued by the learned Judge: "The petitioner has also made a prayer that the Deputy Registrar be given directions to ascertain if the 34 series of two inspected polling stations Nos. 24 and 50 are not mixed in the fourth trunk which has been produced.
The Deputy Registrar will of course see to this and such other discrepancies which may come to his notice, he will make a separate note and he will also make a note on the envelope if he found the discrepancy." After Wasi ud Din J. relinquished his office, the case was assigned to Jalal ud Din J.
An application was then made on July 29, 1974 by the respondent seeking permission to in spect ballot papers and other documents pertaining to the various polling stations, This application was disposed of by Jalal ud Din J. as per order dated January 6, 1975 in these words: "I, therefore, allow the application of the petitioner for inspection of ballot papers in respect of four veiling stations, namely, 26 Tikan Batapora from serial No. 015051 to 15700, 35 Arihal A from serial No. 020901 to 021550, 49 Lassipora from serial No. 031051 to 031900, 23 Drubgham from serial No. 013201 to 013800 and also the counterfoils of 15 Nowpora Pain, 24 Drubgham B. 46 Chandgham and 51 Alaipora, the polling stations of which the ballot papers have already been inspected by the petitioner.
1, however, do not accede to the request of the petitioner to inspect electoral roll and 301 counterfoils and from 16 of the entire con stituency.
The inspection as ordered will be held by and in presence of the counsel for the parties.
But the Deputy Registrar will see that neither the candidate nor their counsel shall, handle the record.
The Deputy Registrar will further make a separate note and record of the discrepancies found, if any.
The inspection will be held during vacation on a date to be fixed by the Deputy Registrar." In the judgment under appeal the learned Judge held that 59 votes validly polled in favour of the respondent were im properly rejected at the time of counting.
It was further found that 901 votes, including 28 votes of dead voters, were improperly polled.
Out of 901 votes, 351 votes were found to have been polled in favour of the appellant.
De tails of those 351 votes were as under: Alaipora polling station No. 51 200 Arihal polling station No. 35 51 Takin Batapora P.S. No. 26 100 Regarding the remaining 550 votes, the learned Judge found that the evidence was not clear, and observed as under: "The evidence, however, is not clear as regards the fate of the remaining 550 such votes.
But having regard to overall circum stances of the case it will not be unreasona ble to conclude that respondent No. 1 was the greatest beneficiary of these 550 votes al though the precise number by which he was benefited out of those votes may not be easily ascertainable.
To these circumstances may be added the circumstance that 59 votes validly polled in favour of the petitioner were im properly rejected at the time of counting, as held by me before.
The cumulative effect of these circumstances is that the respondent No. 1 was able to get an undue advantage of no less magnitude and may be, even greater than that reflected in his declared success over the petitioner by 831 votes.
In this view it must be held that the result of the election, insofar as respondent No. 1 is concerned, was materially affected by the improper rejection of votes in favour of the petitioner at the time of counting and the improper reception of votes on the day of poll and that his election must be declared to be void.
But that should not entitle the petitioner to a declaration that he was duly elected as the total number of the votes improperly received in favour of respondent No. 1 on the date of poll could not be exactly worked out.
The prayer for such de claration must be rejected.
" In the result, the election of the appellant was declared to be void.
The prayer of the respondent for a declaration that he be declared to have been elected was rejected.
When this appeal came up for hearing before this Court on September 3, 1976, we passed an order wherein we referred to the finding of the High Court that it cannot be said as to who was the beneficiary of the 550 votes which were found to have been improperly polled.
We thereafter stated in that order: 302 "In our opinion, it is necessary to find out as a result of further inspection as to how many d those 550 votes were in favour of the appellant, and how many, in favour of respondent No. 1 and the other contesting candidates.
For this purpose, we depute the Registrar (Judicial) of this Court to make an inspection in the presence of the parties and their counsel and submit a report to this Court within six weeks from today.
The Regis trar may also have to locate the 55 ballot papers referred to in the judgment of the High Court at pages 31 51 of the cyclostyled judg ment.
He may also, if necessary, refer to the reports of the Deputy Registrar of the High Court.
The appeal should be put up for further hearing as soon as the report is ready.
" The Registrar of this Court thereafter submitted his report dated September 15, 1976.
The Registrar dealt with most of the matters but in respect of some of the matters he sought further directions.
Necessary directions were thereafter issued by this Court on September 17, 1976.
As a result of those directions, the Registrar had to scrutinise 571 ballot papers in all instead of 550 votes.
The final report of the Registrar is dated September 24, 1976.
The result of the reports of the Registrar taken along with the findings of the High Court may be set out: (1) Votes found by the High Court to have been improperly received in favour of the appellant 351 (2) Votes which were found to have been improperly received in favour of the appellant as per the first report of the Registrar 286 (3) Votes which were found to have been improperly received in favour of the appellant as per the second report of Registrar.
141 Total 778 (4) Total number of votes polled by the appellant as per the results of the election 9,079 (5) Valid votes polled by the appellant 9,079 778=8301 (6) Votes which were found to have been improperly received in favour of the respondent as per the first report 25 (7) Votes which were found to have been improperly received in favour of the respondent as per the second report 19 Total 44 (8) Total votes polled by the respondent as per the result of the election 8,248 (9) Votes validly polled in favour of the respondent which were found by the High Court to have been improperly rejected at the time of counting 59 303 (10) Total number of votes thus polled by the respondent 8,248+59=8,307 (11) Valid votes polled by the respondent 8,307 44=8,263 (12) Excess of votes validity polled in favour of the appellant over those of of the respondent.
38 Some votes were found by the Registrar to have been im properly received in favour of respondents 2 to 4, but it is not necessary to set out those votes.
In appeal before us Mr. Phadke on behalf of the appel lant has urged that in view of the final picture as it emerges from the reports of the Registrar, the appeal should be allowed and the election petition be dismissed as the appellant secured more valid votes than the respondent.
The above stand has been controverted by the respond ent, who has argued the case in person.
At an earlier hearing we requested Mr. Gambhir to argue the case amicus curiae in view of the fact that the respondent was not represented by counsel.
The respondent thereafter stated that he Would like the matter to be argued by counsel of his own choice.
Mr. Shaukat Hussain thereafter appeared on behalf of the respondent.
At the final hearing the respond ent, as mentioned above, chose to argue the case in person.
Perusal of the election petition filed by the respondent shows that apart from the ground not subsequently pressed of the improper rejection of the nomination paper of respondent No. 5, the only ground on which the respondent challenged.
the election of the appellant was the improper reception of votes in favour of the appellant and the improper rejection of the votes cast in favour of the respondent.
This ground is based upon sub clause (iii) of clause (d) of sub section (1) of section 108 of the Jammu and Kashmir Representation of the People Act, 1957 (Act 4 of 1957) corresponding to sub clause (iii) of clause (d) of sub section (1) of section 100 of the Representation of the People, Act 1951 fact 43 of 1951).
According to the above provision, if the High Court is of the opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by the improper reception, refusal or rejection of any vote of the reception of any vote which is void, the High Court shall declare the election of the returned candidate to be void.
Keeping the above provision in view, we may now turn to the facts of the present case.
The High Court found that 351 votes had been improperly received in favour of the appellant.
The High Court further found that 59 votes which had been validly polled i.n favour of the, respondent were improperly reject ed at the time of counting.
In addition to.
that, the High Court found that 550 votes had been improperly received, but it was not possible on the material on record to find out as to who was the beneficiary of those votes.
The High Court all the same was inclined to believe that the appellant must have been the major beneficiary of those 550 votes.
This necessarily involved an element of surmise and conjecture.
To find out the exact position, we directed the Registrar of this Court to 304 scrutinise the 550 ballot papers in question and to make a report as to how many of those votes were cast in favour of the appellant and how many in favour of the respondent and the other candidates.
The Registrar thereafter submitted reports and we have already set out the outcome of those reports taken along with the findings of the High Court.
It would appear from the figures set out above that, exclud ing all the votes which were found to have been improperly received by the appellant and also giving credit to the respondent for 59 votes which were found by the High Court to have been improperly rejected at that time of counting, the net result still is that the appellant has a lead of 38 votes over the respondent.
There is, therefore, no escape from the conclusion that the election of tile appellant should be upheld.
In an election petition founded upon the ground that the result of the election was materially af fected by the improper reception or rejection of votes, the court has first to decide whether certain ballot papers were improperly received or were improperly rejected.
Once ,that controversy is resolved, the rest is purely a matter of arithmetical calculation.
If the result of arithmetical calculation is that the returned candidate has still a lead over his nearest rival, his election would not be declared to be void on the ground of improper reception or improper rejection of votes.
Improper reception or improper rejec tion of votes can result in invalidating an election only if such improper reception or improper rejection materially affects the result of the election.
In the course of his arguments, the respondent has submitted that a number of improprieties were committed in the conduct of election and therefore the election of the appellant be declared to be void.
Although it does appear from the material on record to which our attention was invited by the respondent that irregularities were committed in the conduct of the election, the respondent cannot derive any benefit on that account.
As already mentioned, the respondent sought to challenge the election of the appellant only on the ground of improper reception and improper rejection of certain votes.
The election of the appellant was not challenged on the ground of any irregular ity or non compliance with the provisions of the Constitu tion or of the Representation of the People Act or of any rules or orders made thereunder.
Nor was the election of the appellant assailed on the ground of being vitiated by corrupt practice.
As it is not permissible to widen the scope of an election petition beyond the grounds actually set up in the election petition, the respondent cannot seek relief on grounds which were not taken by him in the elec tion petition.
It has also been urged by the respondent that the number of votes which were improperly received was larger than that found by the High Court.
Nothing cogent has, however, been brought to our notice in support of the above submission to induce us to interfere with the finding of the High Court in, this respect.
Lastly, the respondent submits that 153 ballot papers of Lassipora polling station cast in favour of the appellant should be rejected as 305 they bore the initials and not the full signatures of the presiding officer.
Our attention in this respect is invit ed to clause (h) of rule 56(2) of the Jammu and Kashmir Conduct of Election Rules, 1965, according to which the returning officer at the time of counting shall reject a ballot paper if it does not bear both the mark and the signatures which it should have borne under the provisions of sub rule (1) of rule 3 8.
According to sub rule (1 ) of rule 3 8, every ballot paper shall before issue to elector, be stamped by such distinguishing mark as the Election Commission may direct, and be signed in full on its back by the presiding officer.
It is not disputed that the ballot papers in question bore the distinguishing mark.
The only contention of the respondent, as already mentioned, is that the ballot papers in question bore the initials and not the full signatures of the presiding officer.
In this respect we find that no express ground on that score was set up by the respondent in the election petition.
This apart, we that the matter is covered by the first proviso to sub rule (2) of rule 56 which reads as under; "Provided that where the returning offi cer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect.
" The above proviso which is based upon the principle that a vote validly cast should not be excluded from consideration because of the mistake or omission of the presiding or polling officer, makes it plain that where the returning officer is satisfied that any defect mentioned in clause (h) has been caused by the mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect.
The fact that the returning officer in the present case did not reject the ballot papers in question on the ground that they bore only the initials and not the full signatures of the presiding officer would go to show that the returning offi cer was satisfied that the alleged defect was caused by the mistake or failure on the part of the presiding officer: There can indeed be hardly any doubt on the point that the defect referred to by the respondent occurred because of the mistake or failure of the presiding officer.
We, there fore, see no cogent ground to exclude from consideration 153 ballot papers polled in favour of the appellant.
Before we conclude, we may observe that some other con tentions were also advanced on behalf of the appellant.
In view of the fact that the appeal in any case has to be allowed because of the arithmetical calculations referred to above, it is not necessary to go into those contentions.
As a result of the above, we accept the appeal, set aside the judgment of ,the High Court and dismiss the election petition.
Crossobjections filed by the respondent are dismissed.
Looking to all the facts, we leave the parties to bear their own costs throughout.
P.B.R. Appeal al lowed.

dataset_name: IN-Abs

summary:
100(1) (d)(iii) of the Jammu & Kashmir Representation of the People Act, 1957 provides that if the High Court is of opinion that the result of the election in so far as it concerns a returned candidate, has been materially affected by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, the High Court shall declare the election of the returned candidates to be void.
The appellant was declared elected to the State Assembly in the General Elections.
In his election petition the respondent, a defeated candidate, contended that improper rejection at the time of counting of votes cast in his favour and improper reception of votes at the time of poll ing in favour of the appellant had materially affected the result and that therefore the appellant 's election should be declared void.
The High Court held that certain votes had been improp erly received in favour of the appellant, certain votes validly polled in favour of the respondent were improperly rejected at the time of counting; and in respect of 550 votes which were found to have been improperly received, the High Court held that the appellant was the greatest benefi ciary of those votes although the precise number by which he was benefited could not be easily ascertained.
In appeal, this Court directed the Registrar to scruti nise the 550 ballot papers to find out as to how many of those votes were cast in favour of the appellant and the other candidates.
The result of the investigation showed that the appellant had a lead of 38 votes over the respond ent.
Allowing the appeal HELD: There is no escape from the conclusion that the election of the appellant should be upheld.
[303H] (1) In an election petition founded upon the ground that the result of the election was materially affected by the improper reception or rejection of votes, the Court has first to decide whether certain ballot papers were improperly received or were improperly rejected.
Once that controversy is resolved, the rest is purely a matter of arithmetical calculation.
If the result of arithmetical calculation is that the returned candidate has still a lead over his nearest rival, his election would not be declared to be void on the ground of improper reception or improper rejection of votes.
Improper reception or improper rejec tion of votes can result in invalidating the election only if such improper reception or improper rejection materially affects the result of the election.
[303H] In the instant case, even after excluding all the votes found to have been improperly received by the appellant and also giving credit to the respondent for the votes found by the High Court to have been improperly rejected at the time of counting, the net result still was that the appellant had a lead over the respondent.
(2) As it is not permissible to widen the scope of an election petition, the respondent could not seek relief on grounds which were not taken by him in the election peti tion.
The respondent could not derive any benefit on the irregularities committed in the conduct of election.
The election was not challenged on the ground of any irregulari ty or non compliance with the provisions of the Constitution or of the Representation of the People Act nor was the election assailed on the ground of corrupt practice.
[304D & C] 298 (3) The contention of the respondent that if the ballot papers which bore the initials and not the full signatures of the presiding officer are rejected, the appellant 's election should be declared void, is without force.
The ballot papers bore the distinguishing marks as required by r. 38(1).
The fact that the returning officer did not reject the ballot papers on the ground that they bore only the initials and not the full signatures of the presiding officer showed that the returning officer was satisfied that the alleged defect was caused by the mistake or failure on the part of the presiding officer.
There can be no doubt that the mistake occurred because of the mistake or failure of the presiding officer.
The first proviso to r. 56(2) of the Rules provides that where the returning officer is satisfied that any defect mentioned in cl.
(g) or cl.
(h) of this Rule has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect.
[305B C]


judgement:
Appeal No. 159 of 1954.
Appeal by Special Leave from the Judgment and Order dated the 27th day of June 1952 of the Calcutta High Court in Matter No. 214 of 1951 A reference under section 57 of the Indian Stamp Act.
M. C. Setalvad, Attorney General of India (B. Sen and P. K. Bose, with him) for the appellant.
section Chaudhury, (section N. Mukherjee, B. N. Ghosh and A. K. Basu, with him) for the respondent.
October 4.
VENKATARAMA AYYAR J.
This appeal raises a question under section 5 of the Indian Stamp Act II of 1899.
The respondent was, at the material time, the Managing Director of Messrs Bird and Co. Ltd., and of Messrs F. W. Heilgers and Co., Ltd., which were acting as Managing Agents of several Companies registered under the Indian Companies Act.
He was also a Director of a number of other Companies, and had on occasions acted as liquidator of some Com 107 844 panies, as executor or administrator of estates of deceased persons and as trustees of various estates.
On 4 7 1949 he applied to the Collector of Calcutta under section 31 of the Stamp Act for adjudication of duty payable on a power of attorney, marked as Exhibit A in the proceedings, which he proposed to execute.
By that power, he empowered Messrs Douglas Chisholm Fairbairn and John James Brims Sutherland jointly and severally to act for him in his individual capacity and also as executor, administrator, trustee, managing agent, liquidator and all other capacities.
The Collector referred the matter under section 56(2) of the Act to the decision of the Chief Controlling Revenue Authority, who eventually referred it under section 57 to the High Court of Calcutta stating his own opinion that the stamp duty was payable on the power "for as many respective capacities as the principal executes the power".
The reference was heard by a Bench consisting of the Chief Justice, Das, J. and section R. Das Gupta, J., who differed in their opinion.
The learned Chief Justice with whom Das, J. agreed, held that the different capacities of the executant did not constitute distinct matters for purposes of section 5 of the Act, and that the proper duty payable on the instrument was Rs. 10 under article 48(d) of Schedule 1 A of the Stamp Act as amended by section 13 of Bengal Act III of 1922.
section R. Das Gupta, J. was of the opinion that the different capacities of the executant were distinct matters for the purposes of section 5, and that the instrument was chargeable with the aggregate amount of duty payable if separate instruments were executed in respect of each of those capacities.
In the result, the question was answered in accordance with the opinion of the majority in favour of the respondent.
Against that decision, the Board of Revenue, West Bengal has preferred this appeal by special leave, and contends that the instrument in question comprises distinct matters, and must be stamped in accordance with section 5.
The statutory provisions bearing on the question are sections 3 to 6 of the Act.
Section 3 is the charg 845 ing section, and it enacts that subject to certain exemptions, every instrument mentioned in the Schedule to the Act shall be chargeable with the duty of the amount indicated therein as the proper duty therefor.
Section 4 lays down that when in the case of any sale, mortgage or settlement several instruments are employed for completing the transaction, only one of them called the principal instrument is chargeable with the duty mentioned in Schedule 1, and that the other instruments are chargeable each with a duty of one rupee.
Section 5 enacts that any instrument comprising or relating to several distinct matters shall be chargeable with the aggregate amount of the duties with which separate instruments, each comprising or relating to one of such matters, would be chargeable under the Act.
Section 6, so far as is material, runs as follows: "Subject to the provisions of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the duties chargeable thereunder are different, be chargeable only with the highest of such duties".
The point for decision in this appeal is as to the meaning to be given to the words "distinct matters" in section 5.
The contention of the respondent which found favour with the majority of the learned Judges in the court below is that the word "matters" in section 5 is synonymous with the word "description" occurring in section 6, and that they both refer to the several categories of instruments which are set out in the Schedule.
The argument in support of this con tention is this: Section 5 lays down that the duty payable when the instrument comprises or relates to distinct matters is the aggregate of what would be payable on separate instruments relating to each of these matters.
An instrument would be chargeable under section 3 only if it fell within one of the categories mentioned in the Schedule.
Therefore, what is contemplated by section 5 is a combination in one document of different categories of instruments such as sale and mortgage, sale and lease or mortgage and lease and the like, But when the category is one 846 and the same, then section 5 has no application, and as, in the present case, the instrument in question is a power of attorney, it would fall under article 48 (a) in whatever capacity it was executed, and there being only one category, there are no distinct matters within section 5.
We are unable to accept the contention that the word "matter" in section 5 was intended to convey the same meaning as the word "description" in section 6.
In its popular sense, the expression "distinct matters" would connote something different from distinct "categories".
Two transactions might be of the same description, but all the same, they might be distinct.
If A sells Black acre to X and mortgages White acre to Y, the transactions fall under different categories, and they are also distinct matters.
But if A mortgages Black acre to X and mortgages Whiteacre to Y, the two transactions fall under the same category, but they would certainly be distinct matters.
If the intention of the legislature was that the expression 'distinct matters ' in section 5 should be understood not in its popular sense but narrowly as meaning different categories in the Schedule, nothing would have been easier than to say so.
When two words of different import are used in a statute in two consecutive provisions, it would be difficult to maintain that they are used in the same sense, and the conclusion must follow that the expression "distinct mat ters" in section 5 and "descriptions" in section 6 have different connotations.
It is urged against this conclusion that if the word "matters" in section 5 is construed as meaning anything other than "categories" or in the phraseology of section 6, "descriptions" mentioned in the Schedule, then there could be no conflict between the two sections, and the clause in section 6 that it is "subject to the provision of the last preceding section" would be meaningless and useless.
We see no force in this contention.
Though the topics covered by sections 5 and 6 are different, it is not difficult to conceive of instruments which might raise questions falling to be determined under both the sections.
Thus, if a part 847 nership carried on by members of a family is wound up and the deed of dissolution effects also a partition of the family properties as in Secretary, Board of Revenue vs Alagappa Chettiar(1), the instrument can be viewed both as a deed of dissolution and a deed of partition, and under section 6, the duty payable will be the higher duty as on an instrument of partition.
But supposing by that very deed one of the members creates a charge or mortgage over the properties allotted to his share in favour of another member for moneys borrowed by him for his own purposes, that would be a distinct matter which would attract section 5.
Now, but for the saving clause, a contention might be advanced that sections 5 and 6 are mutually exclusive, and as the in strument falls within section 6, the only duty payable thereon is as on an instrument of partition and no more.
The purpose of the clause in section 6 is to repel any such contention.
Considerable stress was laid by Mr. Chaudhury on the scheme of the Act as embodied in sections 3 to 6 as strongly supporting the view that 'matters ' in section 5 meant the same thing as 'description ' in section 6.
He argued that under section 3 the duty was laid not on all instruments but on those which were of the descriptions mentioned in the Schedule, that section 4 enacted a special provision with reference to three of the categories mentioned in the Schedule, sale (conveyance), mortgage and settlement, that if they were completed in more than one instrument, not all of them were liable for the duty specified in the Schedule, but only one of them called the principal document, and that section 6 provided that when the instrument fell under two or more of the categories in the Schedule, the duty payable was the highest payable on any one of them, that thus the categories in the schedule were the pivot on which the entire scheme revolved, and that in construing the section in the light of that scheme, the expression "distinct matter" must in the setting be construed as distinct categories.
To construe "distinct matters" as (1) I.L.R. 848 something different from "distinct categories" would be, it was argued, to introduce a concept foreign to the scheme of the enactment.
The error in this argument lies in thinking that the object and scope of sections 4 to 6 are the same, which in fact they are not.
Section 4 deals with a single transaction completed in several instruments, and section 6 with a single transaction which might be viewed as falling under more than one category, whereas section 5 applies only when the instrument comprises more than one transaction, and it is immaterial for this purpose whether those transactions are of the same category or of different categories.
The topics dealt with in the three sections being thus different, no useful purpose will be served by referring to section 4 or section 6 for determining the scope of section 5 or for construing its terms.
It is not without significance that the legislature has used three different words in relation to the three sections, 'transaction ' in section 4, matter ' in section 5, and 'description ' in section 6.
In support of his contention that 'distinct matters ' in section 5 meant only different categories, learned counsel for the respondent relied on certain observations in Ansell vs Inland Revenue Commissioners(1).
There, the instrument under consideration was a deed of settlement which comprised certain Government securities as also other investments, and under the Stamp Act, 1891, it was chargeable with a single duty ad valorem on the value of all the properties settled.
By section 74, sub section (1) of the Finance Act, 1910, voluntary dispositions were chargeable with a higher stamp duty as on a conveyance; but Government securities were, exempted from the operation of the section.
The question that arose for decision was whether a separate duty was payable in respect of Government stocks under the provisions of the Stamp Act, 1891 over and above what was paid under section 74, sub section (1) of the Finance Act, 1910 on account of other investments.
Answering it in the affirmative, Rowlatt, J. observed: (1) , 849 "If two different classes of property are being transferred by the same words of assignment in the same document, and those two different classes of property in the same document are different from the point of view of the Stamp Act and taxation, it seems to me in common sense that they must be distinct matters".
The respondent wants to read these observations as meaning that where the matters are not dealt with separately for purposes of stamp duty, then they are not distinct matters.
This, however, does not follow.
The case before the court was one in which the instrument dealt with properties which fell under ' two categories, and the decision was that they were distinct matters.
There is nothing either in the deci sion or the observations quoted above to support the contention of the respondent that if the instrument comprises matters falling within the same description, it is not to be construed as comprising distinct matters.
Reliance was also placed on the observations in Reversionary Interest Society vs Commissioners of Inland Revenue(1), in which it was held that a statutory declaration for the purpose of carrying through a transaction was liable for a single stamp duty.
There, the declaration was made by husband and wife, and in view of the purpose for which it had to be used, it was construed as one declaration.
This is a decision on the facts, and is not of much assistance.
In the view, then, that section 5 would apply even when the instrument comprises matters of the same description, the point for decision is whether the instrument proposed to be executed by the respondent is a single power of attorney or a combination of several of them.
The contention of Mr. Chaudhury is that when the executant of one instrument confers on the attorney a general authority to act for him in whatever matters he could act, then there is, in fact, only a single delegation, and that therefore the instrument must be construed as a single power of attorney liable for a single duty under article 48(d) (1) 850 of the Schedule.
The contention of the appellant, on the other hand, is that though the instrument is executed by one person, if he fills several capacities and the authority conferred is general, there would be distinct delegations in respect of each of those capacities, and that the instrument should bear the aggregate of stamp duty payable in respect of each of such capacities.
The question is which of these two contentions is correct.
We are unable to agree with the respondent 'that when a person executes a power of attorney in respect of all the matters in which he could act, it should be held, as a matter of law and without regard to the contents of the instrument, to comprise a single matter.
Whether it relates to a single matter or to distinct matters will, in our opinion, depend on a number of factors such as who are parties thereto, which is the subject matter on which it operates and so forth.
Thus, if A executes one power authorising X to manage one estate and Y to manage another estate, there would really be two distinct matters, though there is only one instrument executed by one person.
But if both X and Y are constituted attorneys to act jointly and severally in respect of both the estates, then there is only one delegation and one matter, and that is specifically provided for in article 48(d).
Conversely, if a number of persons join in executing one instrument, and there is community of interest between them in the subject matter comprised therein, it will be chargeable with a single duty.
This was held in Davis vs Williams(1), Bowen vs Ashley(1), Good son vs Forbes(1) and other cases.
But if the interests of the executants are separate, the instrument must be construed as comprising distinct matters.
Vide Freeman vs Commissioners of Inland Revenue(1).
Applying the same principle to powers of attorney, it was held in Allen vs Morrison(1) that when members of a mutual insurance club executed Single power, it related to one matter , Lord Tenterdon, C. J. observing that "there was certainly a community of (1) ; (2) ; , 469.
(3) ; , 1000 1001.
(4) [1870 71] L.R. 6 Exch.
(5) ; , 1153.
purpose actuating all the members of this club".
In Reference under Stamp Act, section 46(1), a power of attorney executed by thirty six persons in relation to a fund in which they were jointly interested was held to comprise a single matter.
A similar decision was given in Reference under Stamp Act, section 46(2) where a power of attorney was executed by ten mirasdars empowering the collection of communal income appurtenant to their mirasi rights.
On the other hand, where several donors having separate interests execute a single power of attorney with reference to their respective properties as, for example, when A constitutes X as attorney for management of his estate Black acre and B constitutes the same person as attorney for the management of his estate White acre, then the instrument must be held to comprise distinct matters.
It was so decided in Reference under Stamp Act, 8.
46(3).
Thus, the question whether a power of attorney relates to distinct matters is one that will have to be decided on a consideration of the terms of the instrument and the nature and the extent of the authority conferred thereby.
It may be mentioned that questions of this character cannot now arise in England in view of the special provision contained in the Finance Act, 1927 (17 & 18, Geo. 5, Ch. 10), section 56 which runs as follows: "No instrument chargeable with stamp duty under the heading Letter or Power of Attorney and Commission, Factory, Mandate, or other instrument in the nature thereof ' in the First Schedule to the Stamp Act, 1891, shall be charged with duty more than once by reason only that more persons than one are named in the instrument as donors or donees (whether jointly or severally or otherwise), of the powers thereby conferred or that those powers relate to more than one matter".
There is no provision in the statute law of this country similar to the above, and it is significant that it assumes that a power of attorney might consist of distinct matters by reason of the fact that there are (1) Mad.
(2) Mad.
(3) 108 852 several donors or donees mentioned in it, or that it relates to more than one matter.
Now, considering Exhibit A in the light of the above discussion, the point for determination is whether it can be said to comprise distinct matters by reason of the fact that the respondent has executed it in different capacities.
In this form, the question is bereft of authority, and falls to be decided on well recognised principles applicable to the matter.
It is, as has been stated above, settled law that when two persons join in executing a power of attorney, whe ther it comprises distinct matters or not will depend on whether the interests of the executants in the subject matter of the power are separate or joint.
Conversely, if one person holding properties in two different capacities, each unconnected with the other, executes a power in respect of both of them, the instrument should logically be held to comprise distinct matters.
That will be in consonance with the generally accepted notion of what are distinct matters, and that certainly was the view which the respondent himself took of the matter when he expressly recited in the power that he executed it both in his individual capacity and in his other capacities.
But it is contended by Mr. Chaudhury that the fact that the respondent filled several capacities would not affect the character of the instrument as relating to a single matter, as the delegation thereunder extended to whatever the respondent could do, and that it would be immaterial that be held some properties in his individual capacity and some others as trustee or executor, as the legal title to all of them would vest in him equally in the latter as well as in the former capacity.
We are concerned, he argued, not with the source from which the title flowed but with the reservoir in which it is now contained.
This is to attach more importance to the form of the matter than to its substance.
When a person is appointed trustee, the legal title to the estate does, under the English law, undoubtedly vest in him; but then he holds it for the benefit of the cestui que trust in whom the equitable estate vests.
Under the 853 Indian law, it is well established that there can be trusts and fiduciary relations in the nature of trust even without there being a vesting of the legal estate in the trustee as in the case of mutts and temples.
Vide Vidya Varuthi vs Balusami(1).
In such cases, the legal title is vested in the institution, the mahant or shebait being the manager thereof, and any delegation of authority by him can only be on behalf of the institution which he represents.
When a person possesses both a personal capacity and a representa tive capacity, such as trustee, and there is a delegation" of power by him in both those capacities, the position in law is exactly the same as if different persons join in executing a power in respect of matters which are unrelated.
There being no community of interest between the personal estate belonging to the executant and the trust estate vested in him, they must be held to be distinct matters for purposes of section 5.
The position is the same when a person is executor or administrator, because in that capacity he represents the estate of the deceased, whose persona is deemed to continue in him for purposes of administration.
It was finally contended by Mr. Chaudhury that if every capacity of the donor is to be considered as a distinct matter, we should have to hold that there are distinct matters not only with reference to the capacity of the executant as trustee, executor and so forth, but in respect of every transaction entered into by him in his personal capacity.
Thus, it is argued, if he confers on his attorney authority to sell one property, to mortgage another and to lease a third, he would have acted in three different capacities as vendor, mortgagor and lessor, and the instrument will have to be stamped as relating to three distinct matters.
This, he contended, would destroy the very basis of a general power of attorney.
The fallacy in this argument is in mixing up the capacity which a person possesses with acts exercisable by virtue of that capacity.
When an executor, for example, sells one property for discharging the debts of the testator and (1) [1921] 48 I.A. 302. 854 mortgages another for raising funds for carrying on his business, he no doubt acts in two different transactions but in respect of both of them, he functions only in his capacity as executor.
In our opinion, there is no substance in this contention.
In the result, we are of the opinion, differing from the majority of the learned Judges of the court below, that the instrument, Exhibit A, comprises distinct matters in respect of the several capacities of the respondent mentioned therein, and that the view taken by the revenue authorities and supported by section R. Das Gupta, J. is correct.
This appeal will accordingly be allowed.
The respondent will pay the costs of the appellant here and in the court below.
BHAGWATI J.
I regret I am unable to agree with the conclusion reached in the Judgment just delivered.
While agreeing in the main with the construction put upon sections 4, 5 and 6 of the Act and the connotation of the words "distinct matters" used in section 5, 1 am of the view that the question still survives whether the instrument in question is a single power of attorney or a combination of several of them.
The argument which has impressed my Bro ther Judges forming the majority of the Bench is that though the instrument is executed by one individual, if he fills several capacities and the authority conferred is general, there would be distinct delegations in respect of each of those capacities and the instrument should bear the aggregate of stamp duty payable in respect of each of such capacities.
With the greatest respect I am unable to accede to that argument.
I agree that the question whether a power of attorney relates to distinct matters is one that will have to be decided on the consideration of the terms of 'the instrument and the nature and the extent of the authority, conferred thereby.
The fact, however, that the donor of the power of attorney executes it in different capacities is not sufficient in my opinion to constitute the instrument one comprising distinct matters and thus requiring to be 855 stamped with the aggregate amount of the duties with which separate instruments each comprising or relating to one of such matters would be chargeable under the Act, within the meaning of section 5.
The transaction is a single transaction whereby the donor constitutes the donees jointly and severally his attorneys for him and in his name and on his behalf to act for him in his individual capacity and also in his capacity as managing director, director, managing agent, agent, secretary or liquidator of any company in which he is or may at any time, thereafter be in terested in any such capacity as aforesaid and also as executor, administrator, trustee or in any capacity whatsoever as occasion shall require.
No doubt, different capacities enjoyed by the donor are combined herein but that does not constitute him different individuals thus bringing this instrument within the mischief of section 5.
The executants of the instrument are not several individuals but is only one individual, the donor himself, though he enjoys different capacities.
These different capacities have a bearing on the nature and extent of the powers which he could exercise as such.
In his own individual capacity he could exercise all the powers as the full owner qua whatever right, title and interest be enjoys in the property, whether it be an absolute interest or a limited one.
he may be the absolute owner of the property or may have a life interest therein, he may have a mortgagee 's interest or a lessees interest therein, he may be a dominant owner of a tenement or may be a mere licensee; but whatever interest be enjoys in that property will be the subject matter of the power which he executes in favour of the donee.
He may, apart from this individual interest which he enjoys therein, be a trustee of certain property and be may also enjoy the several interests described above in his capacity as such trustee.
It may be that, in his turn he may be accountable to the beneficiaries for the due administration of the affairs of the trust but that does not mean that he, as trustee, is not entitled to exercise all these powers, the trust property having vested in him, and he being therefore in a position to exercise 856 all these powers in relation thereto.
The same would be the position if he were an executor or an administrator of an estate, in possession of the estate of the deceased as such.
The property of the deceased would vest in him though his powers of dealing with the same would be circumscribed either by the provisions of the testamentary instrument or the limitations imposed upon the same by law.
All these circumstances would certainly impose limitations on his powers of dealing with the properties but that does not detract from the position that he is entitled to deal with those properties and exercise all the powers in relation thereto though with the limitations imposed upon them by reason of the capacities which he enjoys.
It follows, therefore, that, though enjoying different capacities, he is the same individual who functions though in different capacities and conducts his affairs in the various capacities which he enjoys but as a single individual.
He is not one individual when be is acting in his own individual capacity; he is not another individual when he is acting as a trustee of a particular estate and he is not a third individual when he is acting as an executor or administrator of a deceased person.
In whatever capacity he is acting he is the same individual dealing with various affairs with which he is concerned though with the limita tions imposed upon his powers of dealing with the properties by reason of the properties having vested in him in different capacities.
I am therefore of the opinion that the instrument in question does not comprise distinct matters but comprises one matter only and that matter is the execution of a general power of attorney by the donor in favour of the donees constituting the donees his attorneys to act for him in all the capacities which he enjoys.
The instrument in question cannot be split up into separate instruments each comprising or relating to a distinct matter in so far as the different capacities of the donor are concerned.
A general power of attorney comprises all acts which can be done by the donor himself, whatever be the capacity or capacities which he enjoys and cannot be split up 857 into individual acts which the donor is capable of per forming and which he appoints his attorney to do for him and in his name and on his behalf.
It is within the very nature of the general power of attorney that all the distinct acts which the donor is capable of performing are comprised in the one instrument which is executed by him, and if that is the position, it is but logical that whatever acts the donor is capable of performing whether in his individual capacity or in his representative capacity as trustee or as executor or administrator are also comprised within the instrument and are not distinct matters to be dealt with as such so as to attract the operation of section 5.
I am therefore of the opinion that the conclusion reached by the majority Judges in the High Court of Judicature at Calcutta was correct and would accordingly dismiss this Appeal with costs.
BY THE COURT.
In accordance with the opinion of the majority the Appeal is allowed with costs here and in the Court below.

summary:
Held per section R. DAS, ACTING C. J., VENKATARAMA AYYAR, JAFER IMAM and CHANDRASEKHARA AIYAR JJ.
(BHAGWATI J. dissenting) the contention that the word "matter" in section 5 of the Indian Stamp Act was intended to convey the same meaning as the word "description" in section 6 is without force.
In its popular sense, the expression "distinct matters" would connote something different from distinct "categories".
Two transactions might be of the same description, but all the same, they might be distinct.
When two words of different import are used in a statute in two consecutive provisions, it cannot be maintained that they are used in the same sense and therefore the expression "distinct matters" in section 5 and "description" in section 6 have different connotations.
It is settled law that when two persons join in executing a power of attorney, whether it comprises distinct matters or not will depend on whether the interests of the executants in the subject matter of the power are separate or not.
Conversely, if one person holding properties in two different capacities, each unconnected with the other, executes a power in respect of both of them, the instrument should logically be held to comprise distinct matters.
Held, that the instrument in question, Exhibit A, the power of attorney comprised distinct matters within the meaning of section 5 of the Indian Stamp Act in respect of several capacities of the respondent mentioned therein.
Per BHAGWATI J. (dissenting).
The fact that the donor of the power of attorney executes it in different capacities is not sufficient to constitute the instrument, one comprising distinct matters and thus requiring to be stamped with the aggregate amount of the duties with which separate instruments each comprising or relating to one of such matters would be chargeable under the Act, within the mean ing of section 5 of the Indian Stamp Act.
The instrument in question, Exhibit A, does not comprise distinct matters but comprises one matter only and that matter is the execution of a general power of attorney by the donor in favour of 843 the donees constituting the donees his attorneys to act for him in all the capacities he enjoys.
It is within the very nature of the general power of attorney that all the distinct acts which the donor is capable of performing are comprised in one instrument which is executed by him and therefore whatever acts the donor is capable of performing whether in his individual capacity or in his representative capacity as trustee or as executor or administrator are also comprised within the instrument and are not distinct matters to be dealt with as such so as to attract the operation of section 5 of the Indian Stamp Act.
Secretary, Board of Revenue, Madras vs Alagappa Chettiar I.L.R. , Ansell vs Inland Revenue Commissioners , Reversionary Interest Society vs Commissioners of Inland Revenue [1906] 22 T.L.R. 740, Davis vs Williams ; , Bowen vs Ashley ; , Good son vs Forbes ; , Freeman vs Commissioners of Inland Revenue [1870 71] L.R. 6 Exch.
101, Allen vs Morrison ; , Reference under Stamp Act, section 46, Mad. 358, Reference under Stamp Act, section 46, Mad.
386, Reference under Stamp Act, section 46, , and Vidya Varuthi vs Balusami, 48 I.A. 302, referred to.