judgement:
Appeal No. 4075 of 1991.
From the Judgment and Order dated 3.12.1990 of the Calcutta High Court in Second Appeal No. 1063 of 1982.
D.N. Mukherjee, N.R. Choudhary and Ranjan Mukherjee for the Appellant.
Manoj Swarup, Ms. Lalita Kohli, Ms. Sarla Chandra and S.K. Mitra for the Respondent.
The Judgment of the Court was delivered by THOMMEN, J.
Leave granted.
This appeal by the plaintiff in a suit for eviction arises from the judgment of the Calcutta High Court dismiss ing his appeal against the judgment of the 1st appellate court allowing the defendant 's appeal against the decree of the trial court.
The trial court found that the plaintiff was entitled to evict the tenant on the ground of reasonable requirement specified under Section 13(1)(ff) of the West Bengal Premises Tenancy Act, 1956 (the "Act").
Reversing that finding, the 1st appellate court held that the plain tiff was not the owner of the premises and was, therefore, not entitled to seek eviction.
This finding was affirmed by the High Court by the judgment under appeal.
The only question which arises in the present appeal is whether or not the plaintiff is the owner of the suit prem ises for the purpose of instituting a suit for eviction in terms of the Act.
The dispute concerns a flat allotted to the plaintiff by the Kadamtola Housing Co operative Society, Calcutta (the "Society").
This was one of the 16 flats held by the Society under a 99 years lease granted by the Calcut ta Metropolitan Development Authority under a registered document.
The Society in turn allotted these flats to its members, among whom the appellant is one, by a sub lease for a term of 99 years.
The appellant, being an allottee, is thus a sub lessee under the Society with a heritable and transferable title.
The 248 appellant subsequently inducted the respondent into the flat on a rent of Rs. 110 per month.
On 29.10.1976, a notice of termination of the tenancy was issued by the appellant to the respondent calling upon him to vacate the premises not later than December, 1976.
Since the respondent did not vacate the premises, title suit No. 165/77 was instituted by the appellant on the ground of default of payment of rent as specified under Section 13(1)(i) of the Act and also on the ground of reasonable requirement for occupation as provided under Section 13(1)(ff).
The trial court found that the premises were reasonably required by the appellant, and the suit was accordingly decreed on the ground mentioned under Section 13(1)(ff).
It was, however, held that the tenant was not in arrears of rent.
It is important to note that the defendant in his writ ten statement did not question the plaintiff 's title or claim of ownership.
No issue regarding ownership had been framed as it was never questioned by the defendant at any stage of the proceedings in the trial court.
On appeal by the defendant, the 1st appellate court examined the plain tiffs title and held that, since he was only a lessee under a 99 years lease granted by the Society, which itself was a lessee holding a 99 years lease from the Metropolitan Devel opment Authority, he was not an 'owner ' within the meaning of Section 13(1)(ff) of the Act and was, therefore, not entitled to seek eviction under that provision.
Accordingly, the merits of the plaintiffs claim were not examined by the 1st appellate court.
This finding was affirmed by the High Court, and, like the 1st appellate court, it also did not consider the merits of the plaintiffs case for eviction.
Section 13 protects a tenant from eviction except on one or more of the grounds specified thereunder.
That Section, in so far as it is material, reads: "S.(13)(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (fl ') Subject to the provisions of sub section (3A), where the premises are reasonably re quired by the landlord for his own occupation if he is the owner or for the occupation of any person for whose benefit the premises are held and the landlord or such person is not in possession of any reasonably suitable accommo dation.
249 On the facts of this case, the provision of sub section 3(A) of this Section are not attracted.
Clause (ff) is attracted as a ground for eviction if the landlord is in a position to prove that the premises are required by him for his own occupation, if he is the owner of the premises, or for the occupation of any person for whose benefit the premises are held, and the landlord or such other person, as the case may be, is not in possession of any reasonably suitable accommodation.
The 'landlord ' is defined by Section 2 in wide terms so as to include any person who, for the time being, is enti tled to receive or but for a special contract, would be entitled to receive the rent of any premises, whether or not on his own account: ' This definition shows that even if the rent is received by a person not on his own account but on account of any other person, such as his principal or his ward, he is for the purpose of the Act a landlord.
Any such person is, therefore, entitled to institute a suit for eviction.
But to attract clause (fl '), the requirement of the landlord must be either for his own occupation, if he is the owner, or, for the occupation of any person for whose benefit the premises are held.
This clause is, of course, available only when no reasonably suitable accommodation is available to the person for whose occupation the eviction is sought.
It is submitted on behalf of the respondent that the appellant, although a 'landlord ' within the meaning of Section 2, is not an owner so as to be able to seek eviction on the ground specified under clause (ff) of sub section (1) of Section 13.
The contention is that the appellant is only a lessee, and that too in terms of a sub lease of 99 years granted by a Society which is itself holding a lease for the same period.
Such a lessee is not an owner, for his rights are not absolute.
He cannot claim to be an owner for the purpose of seeking eviction by recourse to the provisions of an Act which is intended to protect the tenant and prevent eviction except on specified grounds.
The expression owner should be so strictly construed as to exclude any person having less than full ownership right.
Ownership denotes the relation between a person and an object forming the subject matter of his ownership.
It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons '.
(Salmond on Jurisprudence, 12th ed., Ch. 8, p. 246 et.
seq.).
There are various rights or incidents of ownership all of which need not necessarily be present in every case.
They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it.
Such a right may be indeterminate in duration and residuary in character.
A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a rever 250 sionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event.
All that a plaintiff needs to prove is that he has a better title than the defendant.
He has no burden to show that he has the best of all possible titles.
His ownership is good against all the world except the true owner.
The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute.
The question, however, is whether he has a superior right or interest vis a vis the person challenging it.
The plaintiff is an allottee in terms of the West Bengal Co operative Societies Act, 1983: (See Sections 87 and 89).
He has a right to possess the premises for a period of 99 years as a heritable and transferable property.
During that period he has a right to let out the premises and enjoy the rental income therefrom, subject to the statutory terms and conditions of allotment.
The certificate of allotment is the conclusive evidence of his title or interest.
It is true that he has to obtain the written consent of the Society before letting out the premises.
But once let out in accord ance with the terms of allotment specified in the statute, he is entitled to enjoy the income from the property.
Al though he is a lessee in relation to the Society, and his rights and interests are subject to the terms and conditions of allotment, he is the owner of the property having a superior right in relation to the defendant.
As far as the defendant is concerned, the plaintiff is his landlord and the owner of the premises for all purposes dealt with under the provisions of the Act.
In view of what we have stated above, the High Court and the 1st appellate court were wrong in setting aside the decree of the trial court solely on the question of the appellant 's title.
The appellant 's title was never an issue at any stage of the trial.
There was no plea to that effect and no issue was, therefore, framed on the question.
This being the position, the appellant 's claim has to be decided on the basis of the pleadings, i.e., on the basis that he is the owner of the premises in question.
Accordingly, we set aside the judgment of the High Court and that of the 1st appellate court and remand this case to the 1st appellate court for fresh disposal of the respond ent tenant 's appeal on the merits.
This appeal is accordingly allowed with costs of the appellant throughout.
N.P.V Appeal allowed.

summary:
The appellant plaintiff rented out to the respondent defendant the suit premises allotted to him, by sub lease, by a Housing Co operative Society, which itself held the flat under a 99 years lease granted by the Metropolitan Development Authority.
Sometime later he issued a notice of termination of the tenancy to the respondent and called upon him to vacate the premises within a stipulated time.
On respondent 's failure to vacate the premises, he/instituted a suit on grounds of default of payment of rent and reasonable requirement for occupation under Sections 13(1) (i) and 13(1)(ff) respectively.
The trial court decreed the suit on the ground of reasonable requirement but held that the respondent tenant was not in arrears of rent.
On appeal by the respondent, the first appellate court did not examine the merits of the appellant 's claim of reasonable requirement, but examined the appellant plain tiff 's title, though the respondent had not questioned the same and held that, since the appellant was only a lessee under a 99 years lease granted by the Society, which itself was a lessee holding a 99 years lease from the Metropolitan Development Authority, he was not an 'owner ' within the meaning of Section 13(I)(II) of the Act and was, therefore, not entitled to seek eviction under that provision.
The High Court also did not examine the appellant 's claim for evic tion and affirmed the first appellate Court 's finding on the question of title.
Hence the appeal by the appellant plain tiff.
On the question: whether the appellant was the owner of the suit premises for the purpose of instituting a suit for eviction in terms of the West Bengal Premises Tenancy Act, 1956.
246 Allowing the appeal, this Court, HELD: 1.1 Ownership denotes the relation between a person and an object forming the subject matter of his ownership.
It consists in a complex of rights, all of which are right 's in rem, being good against all the world and not merely against specific persons.
[249 G] Salmond on Jurisprudence, 12th ed.
Ch. 8, p. 246 et.
referred to.
1.2 There are various rights or incidents of ownership all of which need not necessarily be present in every case.
They may include a right to possess, use and enjoy the thing owned; and a right may be indeterminate in duration and residuary in character.
A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a reversionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event.
[249 G H; 250 A] 1.3 All that a plaintiff needs to prove is that he has a better title than the defendant.
He has no burden to show that he has the best of all possible titles.
His ownership is good against all the world except the true owner.
The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute.
The question, however, is whether he has a superior right or interest vis a vis the person challenging it.
[250 B] 1.4 In the instant case, the appellant plaintiff is an allottee in terms of the West Bengal Co operative Societies Act, 1983.
He has a right to possess the premises for a period of 99 years as a heritable and transferable property.
During that period he has a right to let out the premises and enjoy the rental income therefrom, subject to the statu tory terms and conditions of allotment.
The certificate of allotment is the conclusive evidence of his title or inter est.
No doubt he has to obtain the written consent of the Society before letting out the premises.
But once let out in accordance with the terms of allotment specified in the statute, he is entitled to enjoy the income from the proper ty.
Although he is a lessee in relation to the society, and his rights and interests are subject to the terms and condi tions of allotment, he is the owner of the property having a superior right in relation to the defendant.
As far as the respondent is concerned, the appeliant is his landlord and the owner of the premises for all purposes dealt with under the provisions of the Act.
[250 C E] 1.5 Hence.
the High Court and the first appellate court were wrong in setting aside the decree of the trial court solely on the question of 247 appellant 's title, which was never an issue at any stage of the trial.
There was no plea to that effect and no issue was, therefore, framed on the question.
This being the position, the appellant 's claim has to be decided on the basis of the pleadings, i.e. on the basis that he is the owner of the premises in question.
Accordingly, the Judg ments of the High Court and first appellate court are set aside and the matter remanded to the first appellate court for fresh disposal of respondent tenant 's appeal on merits.
[250 E G]


judgement:
iminal Appeals Nos. 81 and 82 of 1958.
Appeals by special leave from the judgment and order dated February 28, 1958, of the Allahabad High Court in Criminal Appeal No. 1809 of 1957 and Referred No. 138 of 1957 arising out of the judgment and order dated November 28, 1957, of the Court of Sessions at Farrukhabad in Sessions Trial No. 61 of 1957.
Jai Gopal Sethi and B. C. Misra, for the appellants.
G. C. Mathur, and C. P. Lal for the respondent.
942 1958.
December 18.
The Judgment of the Court was delivered by KAPUR, J.
These are two appeals which arise out of the same judgment and order of the High Court at Allahabad and involve a common question of law.
Appellants Tej Singh and Mizaji are father and son, Subedar is a nephew of Tej Singh, Machal is Tej Singh 's cousin and Maiku was a servant of Tej Singh.
They were all convicted under section 302 read with section 149 of the Indian Penal Code and except Mizaji who was sentenced to death, they were all sentenced to imprisonment for life.
They were also convicted of the offence of rioting and because Tej Singh and Mizaji were armed with a spear and a pistol respectively, they were convicted under section 148 of the Indian Penal Code and sentenced to three years ' rigorous imprisonment and the rest who were armed with lathis were convicted under section 147 of the Indian Penal Code and sentenced to two years ' rigorous imprisonment.
All the sentences were to run concurrently but Mizaji 's term of imprisonment was to come to an end after " he is hanged ".
Against this order of conviction the appellants took an appeal to the High Court and both their convictions and sentences were confirmed.
The offence for which the appellants were convicted was committed on July 27, 1957, at about sunrise and the facts leading to the occurrence were that field No. 1096 known as Sukhna field was recorded in the revenue papers in the name of Banwari who was recorded as in possession as tenant in chief Sometime in 1949 he mortgaged this plot of land to one Lakhan Singh.
In 1952 this field was shown as being under the cultivation of Rameshwar, the deceased and four others persons, Ram Sarup who was the uncle of Rameshwar, Jailal his brother, Sita Ram and Saddon.
The record does not show as to the title under which these persons were holding possession.
The mortgage was redeemed sometime in 1953.
The defence plea was that in the years 1954, 1955, 1956 possession was shown as that of Banwari.
But if there were any such entries, they were corrected in 1956 and possession was shown in the revenue papers as that of 943 Rameshwar, and four others abovenamed.
These entries showing cultivating possession of the deceased and four others were continued in 1957.
On April 18, 1957, Banwari sold the field No. 1096 to Tej Singh appellant who made an application for mutation in his favour but this was opposed by the deceased and four other persons whose names were shown as being in possession.
In the early hours of July 27, 1957, the five appellants came armed as above stated.
Mizaji 's pistol is stated to have been in the fold (phent) of his dhoti.
A plough and plank known as patela and bullocks were also brought.
The disputed field had three portions, in one sugarcane crop was growing, in the other Jowar had been sown and the rest had not been cultivated.
Maiku started ploughing the Jowar field and overturned the Jowar sown therein while Tej Singh with his spear kept watch.
Bateshwar P. W. 7 seeing what was happening gave information of this to Ram Sarup who accompanied by Rameshwar, Jailal and Israel came to the Sukhna field but unarmed.
Ram Sarup inquired of Tej Singh as to why he was damaging his field and Tej Singh replied that he had pur chased the field and therefore would do " what he was doing " which led to an altercation.
Thereupon, the four persons cutting the sugarcane crop i.e. Mizaji, Subedar, Machal and Maiku came to the place where Tej Singh was and upon the instigation of Tej Singh, Mizaji took out the pistol and fired which hit Rameshwar, who fell down and died I hour later.
The accused, after Rameshwar fell down, fled from the place.
Ram Sarup, Jailal and Israel then went to the police station Nawabgunj and Ram Sarup there made the first information report at about 7 30 a. m., in which all the five accused were named.
When the police searched for the accused they could not be found and proceedings were taken under sections 87 and 88 of the Code of Criminal Procedure, but before any process was issued Subedar, Tej Singh and Machal and Maiku appeared in court on August 3, 1957, and Mizaji on August 14, 1957, and they were taken into custody.
The prosecution relied upon the evidence of the eyewitnesses and also of Bateshwar who carried the 944 information to the party of complainant as to the coming of Tej Singh and others.
The defence of the accused was a total denial of having participated in the occurence and as a matter of fact suggested that Rameshwar was killed in a dacoity which took place at the house of Ram Sarup.
The learned Sessions Judge accepted the story of the prosecution and found Ram Sarup to be in possession of the field; he also found that the appellants formed an unlawful assembly " the common object of which was to take forcible possession of the field and to meet every eventuality even to the extent of causing death if they are interfered with in their taking possession of the field " and it was in prosecution of the common object of that assembly that Mizaji had fired the pistol and therefore all were guilty of the offence of rioting and of the offence under section 302 read with section 149, Indian Penal Code.
The High Court on appeal held that the appellants were members of an unlawful assembly and had gone to the Sukhna field with the object of taking forcible possession and " there is also no doubt that the accused had gone there fully prepared to meet any eventuality even to commit murder if it was necessary for the accomplishment of their common object of obtaining possession over the field.
There is also no doubt that considering the various weapons with which the accused had gone armed they must have known that there was likelihood of a murder being committed in prosecution of their common object ".
The High Court also found that all the appellants had gone together to take forcible possession and were armed with different weapons and taking their relationship into consideration it was unlikely that they did not know that Mizaji was armed with a pistol and even if the common object of the assembly was not to commit the murder of Rameshwar or any other member of the party of the complainants II there can be no doubt that the accused fully knew, considering 'the nature of weapons with which they were armed, namely, pistol and lathis, that murder was likely to be committed in their attempt to take forcible possession over the disputed land ".
The High Court further 945 found that the accused had gone prepared if necessary to commit the murder in prosecution of their common object of taking forcible possession.
They accepted the testimony of Matadin and Hansram who stated that all the accused had asked Ram Sarup and his companions to go away, otherwise they would finish all of them and when they resisted Mizaji accused fired the pistol at them and thus in view of the nature of the weapons with which they had gone to the disputed piece of land, " they knew that murder was likely to be committed in prosecution of their object ".
Another finding given by the High Court was that the appellants wanted to forcibly dispossess the complainants and with that object in view they went to the disputed field to take forcible possession and that the complainant 's party on coming to know of it went to the field and resisted.
Mizaji fired the pistol and thus caused the death of Rameshwar.
The High Court also held : " We are also of the opinion that the act of the accused was premeditated and well designed and that the accused considering the circumstances of the case and the weapons with which they were armed, knew that murder was likely to be committed in accomplishment of their common object.
" For the appellants it was contended that the High Court was not justified in drawing the inference that other members of the party of the appellants had knowledge of the existence of the pistol.
There is no doubt that on the evidence the father Tej Singh must have known that the son, Mizaji, had a pistol.
And in the circumstances of this case the High Court cannot be said to have erroneously inferred as to the knowledge of the rest as to the possession of pistol by Mizaji.
The question for decision is as to what was the common object of the unlawful assembly and whether the offence of murder was committed in prosecution of the common object or was such an offence as the members of the unlawful assembly knew was likely to be committed in prosecution of the common object.
It was argued on behalf of the appellants that the 119 946 common object was to take forcible possession and that murder was committed neither in prosecution of the common object of the unlawful assembly nor was it such as the members of that assembly knew to be ,.likely to be committed.
That the common object of the unlawful assembly was to take forcible possession of the Sukhana field cannot be doubted.
Can it be said in the circumstances of this case that in prosecution of the common object the members of the unlawful assembly were prepared to go to the extent of committing murder or they knew that it was likely to be committed ? One of the members of the assembly Tej Singh was armed with a spear.
His son Mizaji was armed with a pistol and others were carrying lathis.
The extent to which the members of the unlawful assembly were prepared to go is indicated by the weapons carried by the appellants and by their conduct, their collecting where Tej Singh was and also the language they used at the time towards the complainant 's party.
The High Court has found that the appellants " had gone prepared to commit murder if necessary in the prosecution of their common object of taking forcible possession of the land ", which it based on the testimony of Matadin and Hansraj who deposed that when the complainant 's party arrived and objected to what the appellants were doing they (the appellants) " collected at once " and asked Ram Sarup and his companions to go away otherwise they would finish all of them and when the latter refused to go away, the pistol was fired.
That finding would indicate the extent to which the appellants were prepared to go in the prosecution of their common object which was to take forcible possession of the Sukhana field.
The High Court also found that in any event the case fell under the second part of section 149, Indian Penal Code in view of the weapons with which the members of the unlawful assembly were armed and their conduct which showed the extent to which they were prepared to go to accomplish their common object.
Counsel for the appellants relied on Queen vs Sabid Ali (1), and argued that section 149 was inapplicable.
There (1) Cr. 947 the learned Judges constituting the full bench gave differing opinions as to the interpretation to be put on section 149, Indian Penal Code.
That was a case where the members of an unlawful assembly went to take forcible possession of a piece of land.
The view of the majority.
of the Judges was that finding unexpected opposition by one member of the party of the complainants and also finding that they were being over.
powered by him, one of the members of the unlawful assembly whose exact time of joining the unlawful assembly was not proved fired a gun killing one of the occupants of the land who were resisting forcible dis possession.
It was also held that the act had not been done with a view to accomplish the common object of driving the complainants out of the land, but it was in consequence of an unexpected counter attack.
Ainslie, J., was of the opinion that the common object of the assembly was not only to forcibly eject the occupants but to do so with show of force and that common object was compounded both of the use of the means and attainment of the end and that it extended to the committing of murder.
Phear, J., said that the offence committed must be immediately connected with that common object by virtue of the nature of the object.
The members of the unlawful assembly must be prepared and intend to accomplish that object at all costs.
The test was, did they intend to attain the common object by means of murder if necessary ? If events were of sudden origin, as the majority of the learned Judges held them to be in that case, then the responsibility was entirely personal.
In regard to the second part he was of the opinion that for its applica tion it was necessary that members of the assembly must have been aware that it was likely that one of the members of the assembly would do an act which was likely to cause death.
Couch, C. J., was of the opinion that firing was not in prosecution of the common object of the assembly and that there was not much difference between the first and the second part of section 149.
He said : " At first there does not seem to be much difference between the two parts of the section and I think the 948 cases which would be within the first, offences committed in prosecution of the common object, would be, generally, if not always, within the second, namely, offences which the parties knew to be likely to be committed in the prosecution of the common object.
But I think there may be cases which would come within the second part and not within the first.
" Jackson, J., held in the circumstances of that case that the assembly did not intend to commit nor knew it likely that murder would be committed.
Pontifex, J., interpreted the section to mean that the offence committed must directly flow from the common object or it must so probably flow from the prosecution of the common object that each member might antecedently expect it to happen.
In the second part "know" meant to know that some members of the assembly had previous knowledge that murder was likely to be committed.
This section has been the subject matter of interpretation in the various High Court of India, but every case has to be decided on its own facts.
The first part of the section means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object.
It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object; it is enough if it is adopted by all the members and is shared by all of them.
In order that the case may fall under the first part the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members.
Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed.
The expression I know ' does not mean a mere possibility, such as might or might not happen.
For instance, it is a. matter of common knowledge that when in a village a body of heavily armed men set out to take a woman by force, someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty 949 under the second part 'of section 149.
Similarly, if a body of persons go armed to take forcible possession of the land, it would be equally right to say that they have the knowledge that murder is likely to be committed if the circumstances as to the weapons carried and other conduct of the members of the unlawful assembly clearly point to such knowledge on the part of them all.
There is a great deal to be said for the opinion of Couch, C. J., in Sabid Ali 's case (1) that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful assembly knew was likely to be committed in prosecution of the common object.
That, however, does not make the converse proposition true; there may be cases which would come within the second part, but not within the first.
The distinction between the two parts of section 149, Indian Penal Code cannot be ignored or obliterated.
In every case it would be an issue to be determined whether the offence committed falls within the first part of section 149 as explained above or it was an offence such as the members of the assembly know to be likely to be committed in prosecution of the common object and falls within the second part.
Counsel for the appellants also relied on Chikkarange Gowde vs State of Mysore (2).
In that case there were special circumstances which were sufficient to dispose of it.
The charge was a composite one mixing up common intention and common object under sections 34 and 149, Indian Penal Code and this Court took the view that it really was one under section 149, Indian Penal Code.
The charge did not specify that three of the members had a separate common intention of killing the deceased, different from that of the other members of the unlawful assembly.
The High Court held that the common object was merely to chastise the deceased, and it did not hold that the members of the unlawful assembly knew that the deceased was likely to be killed in prosecution of that common object.
The person who was alleged to have caused the fatal injury was acquitted.
This Court held that on the findings (1) Cr.
(2) A.I.R. 1956 S.C. 731.
950 of the High Court there was no liability under section 34 and further the charge did not give proper notice nor a reasonable opportunity to those accused to meet that charge.
On these findings it was held that conviction under section 302 read with section 149 was not justified in law nor a conviction under section 34.
It was next argued that the appellants went to take possession in the absence of the complainants who were in possession and therefore the common object was not to take forcible possession but to quietly take possession of land which the appellants believed was theirs by right.
In the first place there were proceedings in the Revenue Department going on about the land and the complainants were opposing the claim of the appellants and then when people go armed with lethal weapons to take possession of land which is in possession of others, they must have the knowledge that there would be opposition and the extent to which they were prepared to go to accomplish their common object would depend on their conduct as a whole.
The finding of the High Court as we have pointed out was that the appellants had gone with the common object of getting forcible possession of the land.
They divided themselves into three parties, Maiku appellant was in the field where jowar was sown and he was ploughing it, Mizaji, Subedar and Machal were in the sugar field and cutting the crop.
Tej Singh was keeping watch.
When the party of the complainants on being told of what the appellants were doing came, they protested to Tej Singh.
Thereupon, all the members of Tej Singh 's party gathered at the place where Tej Singh was and asked the complainants " to go away otherwise they would be finished ", but they refused to go.
Thereupon Tej Singh asked Mizaji to fire at them and Mizaji fired the pistol which he was carrying in the fold of his dhoti as a result of which Rameshwar was injured, fell down and died I hour later.
It was argued on behalf of the appellants that in these circumstances it cannot be said that the offence was committed in prosecution of the common object of the assembly which was clear from the fact 951 that the party had divided itself into three parts and only Mizaji used his pistol and the other appellants did not use any weapon and just went away.
Both the Courts below have found that the pistol was fired by Mizaji and thus he was responsible for causing the death of Rameshwar which would be murder and also there is no doubt that Tej Singh would be guilty of abetment of that offence.
But the question is whether section 149 is applicable in this case and would cover the case of all the appellants ? This has to be concluded from the weapons carried and the conduct of the appellants.
Two of them were armed one with a spear and the other with a pistol.
The rest were armed with lathis.
The evidence is that when the complainants ' party objected to what the appellants did, they all collected together and used threats towards the complainants ' party telling them to go away otherwise they would be finished and this evidence was accepted by the High Court.
From this conduct it appears that members of the unlawful assembly were prepared to take forcible possession at any cost and the murder must be held to be immediately connected with the common object and therefore the case falls under section 149, Indian Penal Code and they are all guilty of murder.
This evidence of Hansram and Matadin which relates to a point of time immediately before the firing of the pistol shows that the members of the assembly at least knew that the offence of murder was likely to be committed to accomplish the common object of forcible possession.
It was then contended that Mizaji did not want to fire the pistol and was hesitating to do so till be was asked by his father to fire and therefore penalty of death should not have been imposed on him.
Mizaji carried the pistol from his house and was a member of the party which wanted to take forcible possession of the land which was in possession of the other party and about which proceedings were going on before the Revenue Officer.
He fully shared the common object of the unlawful assembly and must be taken to have carried the pistol in order to use it in the prosecution of the common object of the assembly and he did use 952 it.
Merely because a son uses a pistol and causes the death of another at the instance of his father is no mitigating circumstance which the courts would take into consideration.
In our opinion the courts below have rightly imposed the sentence of death on Mizaji.
Other appellants being equally guilty under section 149, Indian Penal Code, have been rightly sentenced to imprisonment for life.
The appeals Must therefore be dismissed.
Appeals dismissed.

dataset_name: IN-Abs

summary:
Early one morning the five appellants, Tej Singh armed with a spear, his son Mizaji armed with a pistol which he carried in the folds of his dhoti, his nephew Subedar, his cousin Machal and his servant Maiku armed with lathis went to take forcible possession of a field which was in the cultivatory possession of Rameshwar and others.
While Tej Singh stood guard, Maiku started ploughing and overturning the jowar that had been sown in one portion of the field and the others started cutting the sugarcane which stood in another portion.
When Rameshwar and others arrived they protested to Tej Singh, whereupon all the accused gathered near Tej Singh and asked the complainants to go away otherwise they would be finished.
On their refusal to go, Tej Singh asked Mizaji to fire at them and Mizaji shot Rameshwar dead.
The Courts below found that the common object of the unlawful assembly was to take forcible possession of the field and to meet every eventuality even to the extent of causing death if interfered with.
It accordingly convicted the appellants under section 302 read with section 149, Indian Penal Code, and sentenced Mizaji to death and the others to imprisonment for life.
The appellants contended that the other appellants could not have the knowledge that Mizaji carried a pistol in the folds 941 of his dhoti, that the murder was not committed in prosecution of the common object to take forcible possession nor did the other appellants know that murder was likely to be committed in furtherance of the common object.
Held, that the appellants had been rightly convicted and sentenced under section 302 read with section 149 Indian Penal Code.
The extent to which the members of the unlawful assembly were prepared to go in prosecution of the common object, is indicated by the weapons carried by them and their conduct.
The circumstances show that the appellants must have known that Mizaji was carrying a pistol.
The appellants were prepared to take forcible possession at any cost and the murder was immediately connected with the common object.
Under the first part Of section I49 the offence committed in prosecution of the common object must be one which was committed with a view to accomplish the common object and must be connected immediately with the common object of the unlawful assembly of which the accused were members.
Even if the offence committed was not in direct prosecution of the common object of the assembly, it would yet fall under section I49 if it could be shown that the offence was such as the members knew was likely to be committed.
The expression 'know ' does not mean a mere possibility, such as might or might not happen.
Queen vs Sabid Ali, Cr., Chikkarange Gowde vs State of Mysore, A.I.R. (1956) S.C. 731, referred to.
The fact that the appellants went to take possession in the absence of the complainants did not show that the common object was not to take forcible possession as proceedings were going on between the parties in the Revenue Court for possession over the field and the appellants had gone armed with lethal weapons prepared to overcome the opposition which they knew they would meet.
Mizaji was rightly given the sentence of death.
He shared the common object of the unlawful assembly and carried the pistol from his house to use it in prosecution of the object and did use it.
The fact that he used the pistol at the instance of his father was not a mitigating circumstance.


judgement:
ivil Appeal Nos.
4094 & 4095 of 1991.
418 From the Judgment and Order dated 6.3.1991 of the Rajas than High Court in D.B. Civil Special Appeal (Writ) Nos.
48 & 50 of 1990.
P.P. Rao, M.K. Ramamurthi, S.K. Singh, Sudhanshu Atreya, Sushil Kumar Jain, Ms. Bina Gupta, Manoj Swarup, Miss. Lalita Kohli, R.F. Nariman and Mrs. Binu Tamta for the appearing parties.
The Judgment of the Court was delivered by KASLIWAL, J.
Special Leaves granted.
Briefly stated the facts are that University of Rajas than invited applications for the post of Professor in the department of Botany.
The Selection Committee constituted under Sec.
5 of the Rajasthan University Teachers and Offi cers (Selection for appointment) Act of 1974 (herein after referred to as the 'Act of 1974 ') held interviews on 20th June, 1989 and selected Dr. G.S. Nathawat for the post of Professor in Botany.
The name of Dr. Urea Kant was mentioned in the reserve list by the Selection Committee.
The syndi cate of the University approved the list and appointed Dr. Nathawat on the said post.
Dr. Nathawat retired on 30th September, 1989 and Dr. Urea Kant who was already selected and kept in the reserve list was appointed as Professor in the department of Botany.
Dr. Bhikalal, Dr. Shiv Sharma, Dr. Sudhakar Mishra and Dr. T.N. Bhardwaj who were not selected filed a writ petition in the High Court initially challeng ing the appointment of Dr. Nathawat on the ground that the Selection Committee was not constituted in accordance with law and objection was also raised that once a selected person joins the post, the reserve list exhausted itself.
Dr. Bhikalal and others subsequently impleaded Dr. Uma Kant also as one of the respondents in the writ petition.
The respondents, in their reply to the writ petition, submitted that the selection committee was properly constituted.
The appointment of Dr. Uma Kant was rightly made as the life of the reserve list was initially for six months and subse quently extended to one year by a resolution of the Syndi cate dated 3.12.1983.
Learned Single Judge held that the constitution of the Selection Committee was valid but as regards the appointment of Dr. Urea Kant from the reserve list it was held that once a person selected by the Selec tion Committee had been appointed the reserve list stood exhausted and the person named in the reserve list could not be appointed against a future vacancy.
The appointment of Dr. Urea Kant was held illegal and it was directed that Dr. Uma Kant be removed from the said post of Professor of Botany.
Both Dr. Uma Kant as well as the University of Rajasthan tiled special appeal before/he Division Bench.
The Division Bench of the High Court by a common order dated March 6, 1991 upheld the order of 419 the Learned Single Judge and dismissed the appeals.
The Division Bench after considering Sections 3, 5 and 6 of the Act of 1974 held that the purpose of preparation of the reserve list seems to be that if the person selected at No. 1 does not join then the next man in the reserve list should be appointed.
But if the person selected by the Selection Committee is given appointment and he joins, then, selection made by the Committee is exhausted and the reserve list is of no avail and becomes extinct.
It was also held that once a person selected by the Selection Committee has joined, that post is filled and some vacancy is caused thereafter a fresh and de novo selection committee 'procedure has to be started because that will be a case of future vacancy aris ing after the post had been filled up on the recommendations of the Selection Committee.
Aggrieved against the order of the Division Bench of the High Court, Dr. Uma Kant as well as the University have come in appeal by grant of special leave.
In order to appreciate the controversy we would advert to certain relevant provisions of the Act of 1974.
Relevant provisions of Sections 3, 5 and 6 are as follows: .LM15 Section 3 Restrictions on appointments of teachers and officers: (1) Notwithstanding anything contained in the relevant law, as from the commencement of this Act, no teacher and no officer in any Univer sity in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Sec.
(2) Save as otherwise provided in sub section
(3), every appointment of a teacher or of an offi cer in any University made in contravention of sub section
(1) shall be null and void.
Section 5 Constitution of Selection Committee (1) For every selection of a teacher or of an officer in a University, there shall be con stituted a committee consisting of the follow ing: (i) Vice Chancellor of the University con cerned, who shall be the Chairman of the Committee; (ii) an eminent educationist to be nominated by the Chancellor for a period of one year; 420 (iii) an eminent educationist to be nominated by the State Government for a period of one year; (iv) One member of the Syndicate to be nomi nated by the State Government for a period of one year; and (v) such other persons as members specified in column 2 of the Schedule for the selection of the teachers and officers mentioned in column 1 thereof.
Section 6 Procedure of Selection Committee (1) The quorum required for the meeting of a selection committee constituted under Section 5 shall not be less than five, out of which at least two shall be the experts, if the selec tion to be made is for the post of a lecturer or any other post of a teacher equivalent thereto.
The quorum required for the meeting of a selection committee for the selection of non teaching posts shall be not less than one half of the number of members of the Selection Committee, out of which at least one shall be an expert.
(2) The selection committee shall make its recommendations to the Syndicate, if the Syndicate disapproves the recommendations of the selection committee, the Vice Chancellor of the University concerned shall submit such recommendations alongwith reasons for disap proval given by the syndicate to the Chancel lor for his consideration and the decision of the Chancellor thereon shall be final.
(3) Every selection committee shall be bound by the qualifications laid down in the rele vant law of the University concerned for the post of a teacher, as the case may be, of an officer.
(4) The Selection Committee while making its recommendations to the Syndicate under sub section (2) shall prepare a list of candidates selection by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50% of the vacan cies in the post of teachers or officers for which the selection committee was constituted under sub section (1) of Section 5 and shall forward the main list and the reserve list alongwith its recommendations to the Syndi cate.
421 Initially the reserve list was to remain valid upto six months from the date of approval of the Syndicate as per the resolution of the Syndicate dated 10th July, 1978 and subse quently the Syndicate by its resolution passed in its spe cial meeting on 3.12.1983 decided that the reserve list recommended by the Selection Committee for selection of employee be treated valid for one year instead of six months.
According to the University this was done in order to curtail the ad hoc appointments and also because the regular selections take a lot of time.
It may also be noted that the Syndicate in its meeting held on 10th July, 1978 had resolved as under: i. Every Selection Committee may draw a Re serve List of suitable candidates upto a number not exceeding 50% of the number of post for which vacancies exist (part vacancy be rounded or to the next whole number) and place them in order of priority.
The Reserve List of drawn be treated valid upto six months the date of approval by the Syndicate of the recommendations of the selec tion committee(s).
On the vacancies caused within the cadre during six months of the approval of the recommendations, the candidates found suitable and placed in the reserve list be appointed in the order of priority given by the Selection Committee.
As already mentioned above the period of ' six months was subsequently extended to one year by resolution dated 3.12.1983.
The University has taken a categorical stand that since 1978 not only in the University of Rajasthan but all other universities in the State of Rajasthan reserve lists are prepared and appointments are being made from the re serve list against future vacancies arising on account of resignation, retirement or promotion.
A long list of ap pointments made from reserve list in various departments of the University of Rajasthan from time to time after joining of the persons from the main list from 1978 to 1990 have been furnished by the appellants before this court by an additional affidavit.
It has also been stated that even out of the petitioners who had filed the writ petition, Dr. T.N. Bhardwaj himself was kept in the reserve list and was there after appointed on the post of reader having fallen .vacant subsequently on account of the promotion of Dr. P. Khanna as Professor.
Section 3 (1) of the Act of 1974 puts a restriction that no teacher in any university in Rajasthan shall be appointed except on the recommenda 422 tions of the Selection Committee constituted under Sec.
5 (1), and, under Sec.
3(2) any appointment made in contraven tion of sub section (1) of sec.
3 shall be null and void.
In the present case Dr. Uma Kant was recommended by the Selection Committee constituted under Section only provides for the constitution of Selection Committee.
The High Court has found that there was no violation of Section 5 in the Constitution of the Selection Committee and the said finding has not been challenged before us on behalf of the respondents.
Section 6 provides for the procedure of Selection Committee and sub section (4) of Section 6 clearly provides that the Selection Committee shall prepare a list of candidates selected by it in order of merit and shall further prepare reserve list in the same order and to the extent of 50% of the vacancies in the post of teachers or officers for which the Selection Committee was constituted.
The Syndicate in its Resolution dated 10th July, 1978 had resolved that the reserve list recommended by the Selection Committee shall be valid upto six months from the date of the approval of the Syndicate which was subsequently extend ed to one year instead of six months in a resolution passed on 3.12.1983.
In our view the High Court was wrong in taking the view that a regular vacancy of Professor having arisen on the retirement of Dr. G.S. Nathawat on 30th September, 1989 again a fresh Selection Committee should have been constituted and no appointment on such post could have been made from the reserve list prepared by the Selection Commit tee on 20th June, 1989.
Section 6(4) clearly provided for the preparation of reserve list to the extent of 50% of the vacancies in the post of teachers or officers for which the Selection Committee was constituted.
It is not in dispute that the main list and the reserve list prepared by the Selection Committee on 20th June, 1989 were approved by the Syndicate.
We agree with the contention of the university that a reserve list is always prepared to meet the contin gency of anticipated or future vacancies caused on account of resignation, retirement, promotion or otherwise.
This is done in view of the fact that it takes a long time in con stituting a fresh Selection Committee which has a cumbersome procedure and in order to avoid ad hoc appointments keeping in view the interest of the student community.
The Selection Committee in the present case was constituted for the selec tion of Professor in Botany and such Selection Committee had approved and recommended the name of the appellant Dr. Urea Kant in the reserve list finding him suitable for appoint ment on the post of Professor in Botany.
The Syndicate which is the highest executive body in the university had also approved the name of Dr. Uma Kant in the reserve list which remained valid upto one year and we cannot accept the con tention raised on behalf of the respondents that the reserve list is exhausted as soon as the person recommended in the main list joined the post.
In the present case Dr. G.S. Nathawat was selected on 423 20th June, 1989 and was going to retire on 30th September, 1989 and in these circumstances it was perfectly valid to select one more person and to keep him in the reserve list for being appointed on the regular vacancy which was shortly anticipated on account of retirement of Dr. Nathawat.
The High Court committed a clear error in restricting the scope of reserve list only against the post for which the selec tion was made and which according to the High Court could only be available to the incumbent in the reserve list if the person recommended in the main list did not join such post.
Such interpretation is not borne out from any of the provisions of Section 3(1), Section 5 or sub section
(4) of Section 6 of the Act of 1974.
The High Court took the view that the expression 'appointment ' in sub sec.
(1) of Sec.
3 shall mean appointed initially.
Then, sub sec.
(1) of Sec.
5 provides that for every selection of a teacher in universi ty, there shall be constituted a Committee consisting of persons mentioned therein.
The High Court held that the words "for every selection" are very pertinent and when read with Sec.
3(1) and 3(2), it only means that whenever there is a regular vacancy for a post, a Selection Committee has to be constituted.
When Dr. G.S. Nathawat retired on 30th September, 1989, a regular vacancy arose and therefore a Selection Committee should have been constituted afresh.
In our view the High Court was wrong in taking the aforesaid view.
5 only provides for the constitution of Selection Committee and the words "for every selection" used in sub sec.
(1) of Sec. 5 only mean that in case of every selection of a teacher or of an officer in university, a Committee would be constituted of the persons mentioned in sub clause (i) to (v) of the said Section.
So far as the present case is concerned, even the High Court has arrived to the conclusion that the Committee constituted for the selection of a professor in Botany was proper and in accord ance with the provisions of Sec. 5 of the Act of 1974.
The appellant, Dr. Uma Kant was found suitable for the post of professor in Botany and his name was recommended in the reserve list by the duly constituted Selection Committee.
6(4) of the Act of 1974 clearly provides that the Selection Committee while making its recommendations to the syndicate under sub sec.
(2) shall prepare a list of candi dates selected by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50% of the vacancies for the post of teachers or offi cers.
Thus a reading of Sec. 5 with Sec.
6(4) makes it quite clear that the Selection Committee constituted shall recom mend not only the candidates selected by it in order of merit but shall further prepare a reserve list to the extent of 50% of the vacancies and persons kept in the reserve list will be considered as having been selected for the concerned post and shall be entitled for appointment if any 424 vacancy is caused during the validity period of the reserve list.
The suitability of the persons kept in the reserve list is also adjudged by the Selection Committee which is constituted for selection of a teacher in the university.
Thus no fault can be found that the incumbent recommended in the reserve list by the Selection Committee was not selected for the concerned post of teacher.
In our view the very purpose of preparing a reserve list would be defeated if the view taken by the High Court is accepted that once a person selected by the selection committee has joined that post then selection made by the Committee is exhausted and the reserve list is of no avail and becomes extinct.
There was no meaning or purpose of keeping the reserve list alive for a long period of one year, as no person selected for the post can at all be expected not to join for such a long period of one year.
If we examine the matter from another angle, it would be clear that according to the university such a procedure is in vogue in all the universities of Rajasthan that a reserve list is used for the appointment on a vacant post caused during the validity period of the reserve list, and numerous appointments had been made in the last decade from the reserve list.
The university has also submitted that if the view taken by the High Court is held to be correct, it will create chaotic situation in the university as all appoint ments so far made from the reserve list will become assail able.
It is well settled that in matters relating to educa tional institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities.
In the result, we allow these appeals, set aside the impugned Judgment of the High Court and hold the selection and appointment of the appellant, Dr. Urea Kant as valid on the post of Professor in Botany in the University of Rajas than.
T.N.A Appeals allowed.

summary:
Section 3(1) of the Rajasthan University Teachers and Officers (Selection for Appointment) Act, 1974 provides that no teacher in any University in Rajasthan shall be appointed except on the recommendations of the Selection Committee constituted under Section 5, and, under Section 3(2) any appointment made in contravention of Section 3(1) is null and void.
Section 6(4) of the Act provides that the Selec tion Committee, while making its recommendations to the Syndicate, shall prepare a list of candidates selected by it in order of merit and shall further prepare a Reserve List in the same order and to the extent of 50% of the vacancies for the post of teachers or officers.
The University of Rajasthan invited applications for the post of Professor in the Department of Botany.
The Selec tion Committee recommended the name of a candidate in its selection list which was approved by the University Syndi cate and the recommended candidate was appointed as Profes sor.
The appellant 's name was included in the Reserve List which was to remain valid for one year as per the Syndi cate 's 416 resolution.
Subsequent to the retirement of the initially appointed Professor, the appellant, who was on the reserve list, was appointed as Professor.
The non selected candi dates challenged the appointment of initially appointed Professor as well as of the appellant and a Single Judge of the High Court held the Selection Committee 's constitution valid but declared the appellant 's appointment illegal on the ground that once a person selected by the Selection Committee is appointed, the reserve list gets exhausted and the person named in the reserve list cannot be appointed against a future vacancy.
On appeal, the Division Bench of the High Court upheld the order of the Single Judge by holding that once a person selected by the Selection Committee joins the reserve list becomes extinct and if some vacancy is caused thereafter.
a fresh and de nova Selection Committee procedure is to be started.
Against the order of the Division Bench of the High Court, appeals were flied in this Court.
Allowing the appeals and setting aside the order of the High Court, this Court, HELD: 1.
A reserve list is always prepared to meet the contingency of anticipated or future vacancies caused on account of resignation, retirement, promotion or otherwise.
This is done in view of the fact that it takes a long time In constituting a fresh Selection Committee which has a cumbersome procedure and in order to avoid ad hoc appoint ments keeping in view the interest of the student community.
[422 F] 2.
The High Court committed a clear error in restricting the scope of reserve list only against the post for which the selection was made and which according to it could only be available to the incumbent in the reserve list if the person recommended in the main list did not join such post.
Thus it was wrong in taking the view that a regular vacancy of Professor having arisen on the retirement of initially appointed Professor, again a fresh Selection Committee should have been constituted and no appointment on such post could have been made from the reserve list prepared by the Selection Committee.
The interpretation given by the High Court is not borne out from any of the provisions of Section 3(1), Section 5 or sub section (4) of Section 6 of the Rajasthan University Teachers and Officers (Selection for appointment) Act, 1974.
[423 B; 422 C D] 417 3.
Section 5 of the 1974 Act only provides for the constitution of Selection Committee and the words 'for every selection ' used in sub section (1) of Section 5 only mean that in case of every selection of a teacher or of an offi cer in University, a Committee would be constituted of the persons mentioned in sub section (i) of the said Section 5.
[423 E] 3.1 A reading of Section 5 with Section 6(4) makes it quite clear that the Selection Committee constituted shall recommend not only the candidates selected by it in order of merit but shall further prepare a reserve list to the extent of 50% of the vacancies and persons kept in the reserve list will be considered as having been selected for the concerned post and shall be entitled for appointment if any vacancy is caused during the validity period of the reserve list.
The suitability of the persons kept in the reserve list is also adjudged by the Selection Committee which is constituted for selection of a teacher in the University.
Thus no fault can be found that the incumbent recommended in the reserve list by the Selection Committee was not selected for the con cerned post of teacher.
[423 G H, 424 A B] 4.
In the instant case, the initially appointed Profes sor was going to retire after sometime.
Therefore, it was perfectly valid to select one more person and to keep him in the reserve list for being appointed on the regular vacancy which was shortly anticipated on account of retirement of initially appointed Professor.
The Selection Committee approved and recommended the name of the appellant in the reserve list finding him suitable for appointment on the post of Professor.
The Syndicate which is the highest execu tive body in the University had also approved the appel lant 's name in the reserve list.
Therefore, the selection and appointment of the appellant is valid.
[422 H, 423 A, 422 G, 424 F] 5.
It is well settled that in matters relating to educa tional institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities.
[424 E]


judgement:
ivil Appeal Nos. 851 & 4125 of 1991.
From the Judgment and Order dated 15.12.1982 of the Punjab & Haryana High Court in R.S.A. No. 754 of 1974.
U.R. Lalit, M.R. Sharma, A.S. Sohal, G.K. Bansal, Anil Nauriya, K.L. Hathi, Ms. Anjna Sharma, N.A. Siddiqui and Mrs. Hemantika Wahi for the appearing parties.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
These are defendants ' appeal and special leave petition arising out of a suit for posses sion brought by Balwant Singh the plaintiff.
In the Spe cial Leave Petition, we condone the delay and grant leave.
The suit was dismissed by the Court of first instance and the dismissal was affirmed by the appellate court but de creed by the High Court in the second appeal.
The issue raised in the appeal is of considerable importance and it relates to the construction of Section 15 of the ( 'the ').
One Smt.
Mahan Kaur, wife of Jaimal Singh inherited from her husband certain agricultural land measuring 110 kanals 12 marlas situate in village Hamhal, Jakhe Pal in Sangrur District.
Some of the lands were under mortgage and are in possession of defendants 2 to 6.
After coming into force of the , Mahan Kaur died intestate.
On being informed that there was no heir entitled to succeed to her property, the Revenue Assistant Collector sanctioned mutation in favour of the State.
Balwant Singh claiming to be a legal heir of Mahan Kaur brought the suit out of which the present appeal arise.
The suit was for possession of the 461 property of the deceased and also for a declaration decree that he was entitled to redeem the mortgaged property from defendants 2 to 6.
The suit was resisted by the State on the ground that the intestate has left behind no heir to succeed and the mutation effected in favour of the State was valid.
Defendants 2 to 6 contended that the right to redeem the mortgage has been extinguished and they have become the owners of the property by being in possession for more than sixty years.
The trial court held that the plaintiff was not entitled to succeed to the property of the deceased since the proper ty was inherited from her husband.
The issue relating to subsistance or otherwise of the mortgage was left open to be decided later as agreed upon by counsel for both the par ties.
The suit was accordingly dismissed by the trial court.
The plaintiffs appeal against the decree was dismissed by the District Judge, Sangrur.
The second appeal preferred by the plaintiff was, however, accepted by the High Court.
The High Court decreed the suit for possession even against de fendants 2 to 6.
That part of the decree has been challenged by defendants 2 to 6 in S.L.P. (Civil) No. 13923 of 1985.
Their grievance is that the High Court ought not to have decreed the suit against them since the plaintiff 's right to redeem the mortgage was not adjudicated by the trial court and by agreement, the question was expressly left open.
The submission of the defendants 2 to 6 appears to be correct and the decree against them made by the High Court is plain ly untenable.
There is indeed no controversy on that aspect of the matter.
L It is not in dispute that Mahan Kaur inherited the suit property from her husband.
She had no issue and she died intestate.
It is also not in dispute that there is no heir from her husband side entitled to succeed to the property.
The plaintiff is grandson of the brother of Mahan Kaur.
According to him he is entitled to get the property of the deceased.
The case of the State is that the plaintiff is not her qualified heir under the and it is a case of failure of heirs resulting in the devolution of the estate on the Government.
The issue raised in the case turns on the rules of succession to a property of a female dying intestate.
The mode of succession has been prescribed under Section 15 of the .
Section 15 has to be read alongwith Section 16.
They in turn have to be read alongwith the provisions of Section 8.
The property devolving upon the State has been provided under Section 29 of the .
Section 15 is important and it may be read in full: 462 "15.
General rules of succession in the case of female Hindus (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16 (a) firstly, upon the sons and daughters (including the children of any pre deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly upon the heirs of the mother.
(2) Notwithstanding anything contained in sub section (1) (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre deceased son or daughter), not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father in law shall devolve, in the absence of any son or daughter of the deceased (including the chil dren of any pre deceased son or daughter) not upon the other heirs referred to in sub sec tion (1) in the order specified therein, but upon the heirs of the husband." Sub section (1) of Section 15 groups the heirs of a female intestate into five categories and they are specified under clauses (a) to (e).
As per Sections 16 Rule 1 those in one clause shall be preferred to those in the succeeding clauses and those included in the same clause shall take simultaneously.
Sub section (2) of Section 15 begins with a non obstante clause providing that the order of succession is not that prescribed under sub section (1) of Section 15.
It carves out two exceptions to the general order of succes sion provided under sub section (1).
The first exception relates to the property inherited by a female Hindu from her father or mother.
That property shall devolve, in the ab sence of any son or daughter of the deceased (including the children of the pre deceased son or daughter), not upon the other heirs referred to in sub section (1) in the order specified 463 therein, but upon the heirs of the father.
The second excep tion is in relation to the property inherited by a female Hindu from her husband or from her father in law.
That property shall devolve, in the absence of any son or daugh ter of the deceased (including the children of the pre deceased son or daughter) not upon the other heirs referred to under sub section (1) in the order specified thereunder but upon the heirs of the husband.
The process of identifying the heirs of the intestate under sub section (2) of Section 15 has been explained in Bhajya vs Gopikabai and anr.
; There this Court observed that the rule under which the property of the intestate would devolve is regulated by Rule 3 of Section 16 of the .
Rule 3 of Section 16 provides that "the devolu tion of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub section (1) and in sub section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father 's or the mother 's or the hus band 's as the case may be, and such person had died intes tate in respect thereof immediately after the intestate 's death".
This rule creates a fiction for the purpose of ascertaining the order of devolution.
It has to be assumed that the husband had died intestate immediately after the female intestate 's death.
Bearing in mind this fiction, one has to go to the Schedule under Section 8 of the to find out the heirs of the husband who are entitled to succeed to the property of the intestate.
The High Court has stated that the property inherited by Mahan Kaur from her husband became her absolute property in view of the provisions of Section 14 and the property would devolve upon the heirs specified under Section 15(1).
It has also observed that the plaintiff would be entitled to suc ceed to the estate of Mahan Kaur even under Section 15 (2) being an heir of her father under Entry (d) of sub section (1) of Section 15 of the .
In our opinion, both these reasons are basically faulty and cannot be accepted.
Counsel for the State argued that the property of the intestate has to be dealt with only under sub section (2) of Section 15, and since there is no heir in that category the property shall devolve on the Government under Section 29.
"Section 29 provides as follows: "ESCHEAT 464 "Failure of heirs If an intestate has no heir qualified to succeed to his or her property in accordance with the provisions of this , such property shall devolve on the Government: and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.
" The property is escheated to the Government when an intestate has left no heir qualified to succeed to his or her property.
The property shall devolve on the Government and the Government shall take the property subject to all the obligations and liabilities of the property.
It is only in the event of the deceased leaving behind no heir to succeed, the State steps in take the property.
The State does not take the property as a rival or preferential heir of the deceased but as the Lord paramount of the whole soil of the country.
In Halsburry 's Laws of England, 4th ed.
17 para 1439 it is stated as follows: "To whom land escheated Escheat in the case of death intestate before 1926 was to the mesne lord is he could be found but, as since 1290 sub infeudation has been forbidden, in the great majority of cases there was no record of the mesne tenure, and the escheat was to the Crown as the lord paramount of the whole soil of the country.
" Section 29, in our opinion, shall not operate in favour of the State if there is any other heir of the intestate.
Indeed, Section 29 itself indicates that there must be failure of heirs. 'Failure ' of heirs means the total absence of heirs to the intestate.
It is important to remember that female Hindu being the full owner of the property becomes a fresh stock of descend.
If she leaves behind any heir either under sub section (1) or under sub section (2) of Section 15, her property cannot be escheated.
Sub section (2) of Section 15, in our opinion, was intended only to change the order of succession specified under sub section (1) and not to eliminate the other classes of heirs.
This view finds support from the recommendations of the Joint Committee of two Houses of Parliament which went into the question of the Hindu Succession Bill.
The Hindu Succession Bill 1954 as originally introduced in the Rajya Sabha did not contain any clause corresponding to sub section (2) of Section 15.
It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament.
The reason given by the Joint Committee is found in Clause 17 of the Bill which reads as follows: 465 "While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that properties inher ited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father in law reverts to the heirs of the husband in the absence of issue.
In the opinion of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass.
" The report of the Joint Committee which was accepted by Parliament indicates that sub section (2) of section 15 was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands of persons to whom justice would demand that they should not pass.
That means the property should go in the first instance to the heirs of the husband or to the source from where it came.
In support of the contrary submission, attention was drawn to a passage from Hindu Law by S.V. Gupte in which it is stated "that the heirs of the husband will take where the property was inherited from the husband or from the father in law.
The object is to eliminate the father and the moth er, the heirs of the father, and the heirs of the mother altogether from succession where the property inherited was from the husband or the father in law and the deceased has left no son or daughter or any grandchild.
The effect of the clause is not only to eliminate the three classes of the heirs, being those mentioned in clauses (c), (d) and (e) to subsection (1), but to change the order of succession." (1981 Ed.
2 p. 522).
We however, find it difficult to share this view. ' It does not get support from the terms of sub section (2) of Section 15.
Sub section (2)(b) emphasises that the property of the intestate shall not devolve upon the heirs referred to in sub section (1) in the order speci fied thereunder but upon heirs of the husband.
The, object seems to be not to eliminate the other heirs under sub section (1) and not to exclude them from inheritance alto gether.
There is no justice in such a construction of Sec tion 15.
The Parliament could not have intended that result.
In this view of the matter, we dismiss the Civil Appeal No. 851 of 1991 preferred by the State but not for the reasons stated by the High Court.
We allow the appeal aris ing out of SLP (Civil) No. 13923 of 1985 466 and set aside that portion of the decree made by the High Court as against the defendants 2 to 6.
The suit filed by the plaintiff as against defendants 2 to 6 stands dismissed.
The parties may adjudicate elsewhere the subsistence or otherwise of the mortgage in question.
In the circumstances of the case, there will be no order as to costs.
G.N. CA No. 851/91 dismissed and CA No. 4125/91 allowed.

summary:
One Smt. 'M ' inherited from her husband certain agri cultural lands.
Some of the lands were under mortgage and in the possession of defendants 2 to 6.
She died intestate after the came into force.
As there was no heir entitled to succeed to her property, mutation was sanctioned in favour of the State.
The grandson of her brother claiming to be her legal heir filed a suit for possession of the property and for a declaration that he was entitled to redeem the mortgaged property from defend ants 2 to 6. 'The suit was resisted by the First Defendant, viz. the State on the ground that the intestate had left no heir to succeed and the mutation effected in favour of the State was valid.
Defendants 2 to 6 contended that the right to redeem the mortgage had extinguished, and they have become the owners of the property as they were in possession for more than sixty years.
The Trial Court dismissed the suit holding that the plaintiff was not entitled to succeed to the property of the deceased since the property was inherited from her husband.
As regards the mortgage, it was left open to be decided later as agreed to by the parties.
Plaintiff preferred an appeal and the District Judge dismissed the same.
On a second appeal preferred by him, the High Court decreed the 459 suit for possession even against defendants 2 to 6.
The State as well as the defendants 2 to 6 have preferred the present appeals by special leave.
The appellant State contended that the plaintiff Re spondent was not a qualified heir under the and hence it was a case of failure of heirs resulting in the devolution of estate on the Government.
The other appel lants (Defendants 2 to 6) contended that the High Court ought not have decreed the suit against them since the plaintiff Respondent 's right to redeem the mortgage was not adjudged by the trial court and by agreement the question was expressly left open.
Dismissing the appeal preferred by the State and allow ing the appeal of defendants 2 to 6, this Court, HELD: 1.
The property is escheated to the Government when an intestate has left no heir qualified to succeed to his or her property.
The property shall devolve on the Government and the Government shall take the property sub ject to all the obligations and liabilities of the property.
It is only in the event of the deceased leaving behind no heir to succeed, the State steps in to take the property.
The State does not take the property as a rival or preferen tial heir of the deceased but as the Lord paramount of the whole soil of the country.
[464 B,C] 2.
Section 29 of the shall not operate in favour of the State if there is any other heir of the intestate.
Indeed, Section 29 itself indicates that there must be failure of heirs. 'Failure ' of heirs means the total absence of heirs to the intestate.
A female Hindu being the full owner of the property becomes a fresh stock of descend.
If she leaves behind any heir either under sub section (1) or under sub section (2) of Section 15, her property cannot be escheated.
[464 E,F] Halsbury 's Laws of England, 4th Edn.
17 para 1439; referred to.
Sub Section (2) of Section 15, intended only to change the order of succession specified under sub section (1) and not to eliminate the other classes of heirs.
Section 15(2) came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament.
The report of the Joint Committee which was accepted by Parliament indicates that this sub section was intended to revise the order of succession among the heirs to a Hindu female and to prevent the properties from passing into the hands to per sons to whom justice would 460 demand that they should not pass.
That means the property should go in the first instance to the heirs of the husband or to the source from where it came.
[464 F, H, 465 C] 3.2.
Sub section (2)(b) of Section 15 emphasises that the property of the intestate shall not devolve upon the heirs referred to in sub section (1) in the order specified thereunder but upon heirs of the husband.
The object is not to eliminate the other heirs under sub sectiOn (1) and not to exclude them from inheritance altogether.
There is no justice in such a construction of Section 15.
The Parliament could not have intended that result.
[465 F G.] Bhajya vs Gopikabai and Anr, ; , referred to.