judgement:
minal Appeal No. 109 of 1967.
Appeal by special leave from the judgment and order dated May 4, 1967 of the Patna High Court in Criminal Appeal No. 455 of 1965.
Debobrata Mookherjee and P. K. Ghosh, for the appellant.
D, P. Jha, for the respondent.
565 The Judgment of the Court was delivered by Hegde, J.
In this appeal by special leave, Mr. Debabrata Mookherjee learned counsel for the appellant advanced the following contentions : (1) the investigation conducted in this case was without the authority of law, (2) the nature of the onus under section 4 of the Prevention of Corruption Act has been wrongly construed by the High Court as well as the trial court, and (3) the sanction granted under section 6 of the Prevention of Corruption Act is invalid in law as the authority who granted the same had no competence to do so.
The facts leading upto this appeal are these.
The appellant was an assistant medical officer in the railway hospital at Gaya in the year 1964.
PW 4 Doman Ram was a khalasi working under the inspector of works, Eastern Railway, Gaya.
On March 2, 1964, as he was suffering from dysentery and stomach pain he was sent to the appellant along with a sick note for treatment.
The case of PW 4 was that when he went to the appellant for treatment the appellant demanded and received, from him Rs. 2 as illegal gratification for treating him.
Thereafter he was.
treated by the appellant on the 5th, 7th.
9th and 12th of that month.
By the 12th he had completely recovered and, therefore he wanted to rejoin duty and for that purpose he requested the appellant to give him a fitness certificate.
For issuing him that certificate the appellant demanded Rs. 5 as bribe and he further told PW 4 that unless he paid him the said sum by March 14, 1964, he (appellant) would remove PW 4 's name from, the sick list.
After this talk, when PW 4 was going out of the hospital he met a person by name Babu.
He complained to Babu about the behavior of the appellant.
The said person told him that he would meet him again on March 14, 1964, but on March 14 Mr. A. C. Das PW 17, Inspector of Special Police Establishment met PW 4 in his house and ascertained from him all that had happened.
Thereafter PW 4 met PW 17 again at the railway station as desired by the latter.
From there both of them went to the district Dak bungalow where PW 17 recorded the complaint of PW 4.
The same day PW 17 obtained from the First Class Magistrate an order under section 5A of the Prevention of Corruption Act.
Thereafter, PW 4 produced before PW 17 a five rupee currency note in the presence of panch witnesses.
PW 17 noted the number of the currency note in question, prepared a memorandum in respect of the same, got it attested by the panch witnesses and thereafter returned the said currency note to PW 4 to be given to the appellant in case he made any further demand for bribe.
After these preliminaries were over PW 4 went to the appellant along with the panch witnesses.
There when PW 4 asked for the certificate, the appellant repeated his earlier demand.
Then PW 4 gave him the currency note in question.
This was seen by the panch 566 witnesses.
Immediately signal was given to PW 17 who came to the hospital and.
asked the appellant to produce the five rupee note received by him from PW 4.
At this stage the appellant became extremely nervous.
He admitted that PW 4 had paid him Rs. 5 but that according to him was a return of the loan given to him by the appellant.
He produced the currency note in question.
After investigation the appellant was charged under section 161 IPC and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act.
The plea of the appellant was that PW 4 and his wife were doing odd jobs in his house; PW 4 was a drunkard and hence was always in need; he used to often borrow from him (appellant); he had borrowed Rs. 5/ from him some.
days prior to the date of the trap and he returned that amount on that day.
The appellant examined some witnesses in support of that plea.
The trial court as well as the High Court accepted the prosecution evidence; rejected the defence version and convicted the appellant both under section 161, IPC as will as section 5(2) of the Prevention of Corruption Act.
They have given good reasons in support of the findings of fact reached by them.
As this Court does not go into questions of fact except under exceptional circumstances, Mr. Mookherjea primarily confined himself to the legal issues arising in the case.
His first contention was that the investigation held in this case was without the authority of law and hence the.
appellant is entitled to be acquitted.
He urged that in view of section 5A of the Prevention of Corruption Act, PW 17 who was only an Inspector of police could not have investigated the case without the prior permission of a magistrate of the first class; on March 12, 1964 he merely applied for and obtained from a first class magistrate permission to lay a trap; the permission to, investigate the case was obtained by him only on the 21st but by that time the entire investigation was over; hence there was no valid investigation.
The application made by PW 17 on the 12th was under section 5A of the Prevention of Corruption Act Therein, it is true, he had only asked for permission to lay a trap.
It must be remembered that the permission given was one under section 5A. A permission under that provision is a permission to investigate the case.
Laying the trap is a part of the investigation.
It is so laid down by this Court in State of Madhya Pradesh vs Mubarak Ali().
An investigation is one and indivisible.
[ All steps taken by PW 17 to ascertain the truth of the complaint made by PW 4 alleging that the appellant was attempting to obtain bribe from him, come within the expression 'investigation ' under section 4(1) of the Code of Criminal Procedure. 'Investigation ' includes all the proceedings (1) [1959] 2 S.C.R.201.
567 under the Code for the collection of evidence conducted by a police officer or any person (other than a magistrate) who is authorised by a magistrate in this behalf.
The scope of the expression 'investigate ' found in section 5A of the Prevention of Corruption Act was explained by this Court in H. N. Rishbud and Inder Singh vs State of Delhi( ) and State of Uttar Pradesh vs Bhagwant Kishore Joshi(2).
Section 5A does not contemplate two sanctions, one for laying the trap, and another for further investigation.
Once an order under that provision is made that order covers the entire, investigation.
A permission given under that provision enables the officer concerned not only to lay a trap but also to hold further investigation.
There is no doubt that PW 17 was under a mistaken impression that he should obtain two permissions, one for laying the trap and another for investigating the case.
Evidently because of that he applied for a second permission Rome days after the trap was laid.
But that permission was wholly superfluous and the same does not affect the validity of the earlier order.
Hence there is no basis for the contention that any portion of the investigation in this case was done without the authority of law.
It was next urged that before granting the permission the learned magistrate did not apply his mind to the question whether there was any need for granting the sanie.
Before permitting PW 17 he should, have first ascertained whether any officer of the rank of Deputy Superintendent or above was not immediately available to investigate the case, and whether 'there was any other reason for departing from the normal rule laid down by the legislature, namely, that cases of this nature should be investigated by officers of the rank of Deputy Superintendent of Police or above.
It was further contended on behalf of the appellant that the earned magistrate made the order casually he gave no reason in support of his order and hence the permission granted does not meet the requirements of the law.
The object of the legislature in enacting section 5A was to see that the investigation of offenses punishable under sections 161, 165 or 165A, IPC as well as those under section 5 of the Prevention of Corruption Act should be done ordinarily by officers of the rank of deputy superintendent or above N4 doubt section 5A also provides for an alternative procedure.
An officer below the rank of deputy superintendent can investigate those: offenses if he obtains the previous permission of a first class magistrate.
The legislature proceeded on the basis that except for good reasons the magistrate would not accord permission for officers below the rank of a deputy superintendent to investigate those offenses.
But exigencies of administrative convenience may require I that some of those (1) ; (2) ; 568 cases have to be investigated by officers below the rank of Deputy Superintendents.
For that reason it was provided that ' in such circumstances the permission of a. magistrate of the first class should be obtained.
This Court has laid down in State of Madhya Pradesh vs Mubarak Ali( ') that the statutory safeguards under section 5A must strictly be complied with for they are.
conceived in public interest and were provided as a guarantee against frivolous and vexatious proceedings.
A magistrate, can not surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission.
He must also be satisfied that there is reason owing to exigencies of the administrative convenience to entrust a subordinate officer with the investigAtion.
It is further observed therein that it is desirable that the order giving the permission should ordinarily on the face of it disclose the reasons for giving permission.
The order giving permission under section 5A in this case does not give any reason.
On the application submitted by PW 17 the learned magistrate merely ordered "Permission granted".
PW 17 did not mention in his application any special reason for permitting him to investigate the case unless we consider the statement in the application "Today is the date fixed for issuing the fit certificate: after receiving a bribe money of Rs. 5 from him" as impliedly a ground in, support of his application.
It is surprising that even after this Court pointed out the significance of section 5A in several decisions there 'are still some magistrates and police officers who continue to act in a casual manner.
It is obvious that they are ignorant of the decisions of this Court.
But the legality of the investigation held in this case does not appear to have been challenged in the trial court.
The charge leveled against the appellant is established by satisfactory and therefore all that we have now to see is whether the accused was prejudiced by the fact that investigation of this case was made by an officer below the rank of a Deputy Superintendent, as laid down by this Court in Munnalal vs State of Uttar PradeSh(2) and State of Uttar Pradesh vs Bhagwant Kishore Joshi(3).
No prejudice was pleaded much less established An illegality committed in the course of an investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceed to termination the invalidity of the preceding investigation does not vitiate "the result unless the miscarriage of justice has been caused thereby, See Rishbud and Inder Singh vs State of Delhi(4).
We next take up the question as to the, scope of section 4 of the Prevention of Corruption Act.
As, mentioned earlier, the appel (1) (2) ; (3) ; (4) (1955] 1 S.C.R. 1150.
569 lant admits the fact that he received a sum of Rs. 5 from PW 4 on March 14, 1964.
Once that fact is admitted by him, the court has to presume unless the contrary is proved by the appellant that he accepted the sum in question as a motive or reward for issuing the fit certificate.
Mr. Mookherjea 's contention was that the presumption in question does not arise unless the prosecution proves that the amount in question was paid as a bribe.
He urged that the presumption under section 4 arises only when the prosecution proves that the Appellant had received "any gratification (other than legal remuneration) or any valuable thing from any person".
He laid stress on the Word gratification ' and according to him the word 'gratification ' can only mean something that is given as a corrupt reward.
If this contention of Mr. Mookherjea is correct then the presumption in question would become absolutely useless.
It is not necessary to go into this question in any great detail as the question is no more res Integra.
In C.I. Emden vs
State of U.P. (I") this Court held that the "presumption under section 4 arose when it was shown that the Accused had received the stated amount and that the, said amount Was not legal remuneration.
The word 'gratification ' in section 4(1) was given its literal dictionary meaning of satisfaction of appetite or desire; it could not be construed to mean money paid by way of a bribe.
" The Court further observed "If the word 'gratification ' is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the.raising of the presumption.
Technically it may no doubt be suggested that the object which the statutory presumption serves on, this construction is that the court may then presume that the money was paid by way of a bribe as a motive or reward as required by section 161 of the Code.
In our opinion this could not have been the intention of the Legislature in prescribing the; statutory presumption under section 4(1).
In the context we see no justification for not giving the word 'gratification ' its literal dictionary meaning.
There is another consideration which supports this construction.
The presumption has also to be raised when it is shown that the accused person has received valuable thing.
This clause his reference to, the offence punishable under s, 165 of the Code; and there is no doubt that one of the essential ingredients, of the said offence is that the valuable things should have been received by the accused without consideration or for a not be suggested that the relevant clause in section 4(1) (1) ; 570 which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the accused but that it has been received by him without consideration or for a consideration which he knows to be inadequate.
The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more.
If that is the true, position in respect of the construction of this part of section 4(1) it would be unreasonable to, hold that the word gratification ' in the same clause imports the necessity to prove not only the payment of money but the incriminating character of the said payment.
It is true that the Legislature might have used the word money ' or 'consideration ' as has been done by the relevant section of the English statute; but if the dictionary meaning of the word 'gratification ' fits in with the scheme of the section and leads to the same result as the meaning of the word valuable thing ' mentioned in the same clause, we see no justification for adding any clause to qualify the word 'gratification '; the view for which the appellant contends in effect amounts to adding a qualifying clause to describe gratification.
" The same view was taken by this Court in Dhanvantrai Balwantrai Desai vs State of Maharashtra(1) and again in V. D. Jhangan vs State of Uttar Pradesh(2).
It was next contended that to discharge the burden placed on the appellant under section 4 all that he has to do is to offer a reasonable explanation, the burden placed on him by section 4(1) being somewhat analogous to that 'Placed on an accused under section 114 of the Evidence Act.
This branch of the law is also well settled by the decisions of ' this Court.
Section 114 of the Evidence Act provides that the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Under that provision the court is not bound to draw any presumption of fact. 'It is within its discretion to draw a presumption or not.
But under s, 4(1) the court is bound to draw the presumption mentioned therein. ',The presumption in question will hold good unless the accused proves the contrary.
In other words, the burden of proving the contrary is squarely placed on the accused.
A fact is said to be when after Considering the matters before it the court either believes it to exist or con (1) A.T.R. (2) ; 571 siders its existence was so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists.
The proof given by the accused must satisfy the aforementioned conditions.
If it does not satisfy those conditions then he cannot be said to, have proved the contrary.
In Dhanvantrai Balwantrai vs State of Maharashtra( ') this Court considered the nature of the proof required to be given by ' the accused under section 4 (I).
Therein this, Court held that the burden resting on the accused person in such a case would not be as light as that placed on him under section 114 of the Evidence Act and the same cannot be held to be discharged merely by reason of the fact that the explanation offered by him is reasonable and prob able.
It must further be shown that the explanation is a true one.
The words 'unless the contrary is proved ' which occur in that provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible.
The same view was taken by this Court in V. D. Jhangan vs State of Uttar Pradesh (2).
But at the same time it was mentioned in that decision that the burden resting on the accused will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt.
In other words, the, nature of the burden placed on him is not the same as that placed on prosecution which must not only prove its case but prove it beyond reasonable doubt.
In the instant case the evidence adduced by the appellant in support of his plea was not accepted by the trial court as well as the High Court.
Hence it must be held that he had not discharged the burden placed on him by law. ' This takes us to the last point urged by Mr. Mookherjea namely that the sanction to prosecute granted by PW 1, the chief medical officer, under section 6(1) of the Prevention of Corruption Act is invalid as he was not the authority competent to remove the appellant from his office and hence the prosecution is vitiated.
Section 6(1), to the extent it is material for our present purpose, reads : "No court shall take cognizance of an offence punishable under section 161 or section 164 or section 165 of the Indian Penal Code, or Under sub section (2) or sub section 3A of section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction, (a). . . . . (b). . . . . (c) in the case of any other person, of the authority competent to remove him from his office." (1) A.I.R. 1964 S.C. 575.
L7 Sup.
CI/68 12 (2) ; 572 This Court has laid down in R. R. Chari vs State of U.P.(1); as well as in several other decisions that no court can validly take cognizance of any of the offenses mentioned in section 6(1) of the Prevention of Corruption Act without the previous sanction of the authority competent to remove from office the accused.
Without a valid sanction the court had no jurisdiction to try the case.
Hence, if the sanction accorded in: this case is invalid then the appellant is entitled to be acquitted.
P.W. I deposed that the appellant was a class III officer and that he could have been appointed or dismissed by the Deputy Agent Personnel who is subordinate to him.
Therefore he (P.W. 1) was competent to grant previous sanction under section 6 (1) of the Prevention of Corruption Act.
P.W. 1 's assertion that the appellant could have been removed from 'his office either by the Deputy Agent Personnel or by himself was challenged in his cross examination.
The trial court as well as the High Court have relied on the oral evidence of P.W. 1 in coming to the conclusion that the sanction granted is valid.
In our opinion those courts erred in relying on oral evidence in deciding the validity of the sanction granted.
Hence, we asked the learned counsel for the respondent to satisfy us with reference to the rules on the subject that P.W. 1 was competent to remove the appellant from his office.
For this, ,purpose we granted him several adjournments.
Though our attention has now been invited to some rules, those rules do not establish that P.W. I as competent to grant the sanction in question.
It was contended on behalf of.
the appellant that he was a gazetted officer and therefore he could be removed only by the Railway Board.
This contention does not appear to be correct.
As seen from the Government of India, Ministry of Railways publication under the title "authorised scales of pay", the appellant is a class HI officer.
From that publication it is further seen that F only class I and II officers are designated as gazetted officers.
In support of his contention that he was a gazetted officer, the ap pellant relied on the Railway Board 's letter No. PC/60/PS 5/MH3 dated 2 3 1962. 'Paragraph 4 of that letter the only relevant paragraph for our present purpose says that an assistant surgeon after five years service shall hold the honorary gazetted rank and shall be entitled to the usual privileges granted to gazetted officers in matters such as passes, allotment of quarters.
This letter merely indicates that the officers mentioned therein are entitled to certain privileges which are ordinarily available to gazetted officers.
We are unable to 'read that letter as raising the rank of the appellant to that of a gazetted officer.
Therefore we proceed on the basis that the appellant was a non gazetted officer.
But the question still remains whether P.W. 1 was competent to remove him (1) ; 573 from service.
In view of appendix 3 8 of the Indian Railways Establishment Code Vol.
III (4th re print, dated 26 7 1962), we may take it that P.W. 1 was the head of the department to which the appellant belongs.
The next question is whether the head of his department was competent to remove the appellant from his service.
As per r. 134 of the Indian Railway Establishment Code, pub lished in 1959, authorities competent to make first appointment to non gazetted posts in the Indian Railways are the General Manager, the Chief Administrative Officer or lower authority to whom he may delegate power.
There is no evidence to show that this power has been delegated to the heads of the department.
No provision in the Indian Railway Establishment Code 1959 prescribing the authorities competent to remove from office a class III officer was brought to our notice.
But the prefatory note to Vol.
I of the Code says, "The revised Chapter XVII and revised Appendices I and XII will be printed later for inclusion in this edition.
Till such times these are printed, the rules and provisions contained in Chapter XVII and Appendices IV and XVIII in the 1951 Edition (Reprint) as, amended from time to time shall continue to apply." In 1961 new rules relating to discipline and appeal of railway servants other than employed in the railway protection force have been published.
Rule 1701 says, "Without prejudice to the provisions of any law, for the time being in force, relating to the conduct of Government servants, or to the rules made under section 47 (e) of the Indian Railways Act, 1890 (9 of 1890), the conduct of railway servants shall be governed by the rules contained in Appendix Vlll.
" Our attention has not been invited to any rules made under section 47 (e) of the Indian Railways Act, 1890 or any other statutory rules.
Hence we are proceeding on the basis that the aforementioned r. 1701 governs the present case.
Rule 1705 says that the authorities who are competent to place a railway servant under suspension and to impose penalties on him are specified in the Schedules 1, II and III appended to the Rules.
Rule 1707 sets out the various punishments that may be imposed on a railway servant which includes removal from service as well as dismissal from service.
Schedule I deals with railway servants employed in the Railway Board 's office, the Research, Design and Standard Organisation, the Railway Staff College, Baroda, the Advanced Permanent Way Training School, Poona, the Railway Service Commission, the Railway Rates Tribunal, the Railway Liaison Office and all other railway offices which are not enumerated above.
Schedule I does not apply to the case of railway servants employed in the zonal railways.
As regards them, provision is made in Sch.
From that Schedule it is seen that though a head of the Department can impose on Class III officers 574 censure as well as some other punishments detailed therein, he is not competent to impose on them the punishment of removal from service, compulsory retirement or dismissal from service.
Those punishments, as seen from the Schedule,can be imposed on them only by thE appointing authority or any other higher authority.
P.W. 1 is not shown to be the appointing authority.
On the material before us it is not possible to come to the conclusion that P.W. 1 was competent to grant sanction under section 6 (1)of the Prevention of Corruption Act.
We accordingly allow this appeal and set aside the conviction of the appellant.
He is on bail.
His bail bond stands cancelled.
V.P.S. Appeal allowed.

summary:
The appellant was an assistant medical officer in a railway hospital at Gaya.
Though he had certain privileges ordinarily available to gazetted officers he was only a non gazetted Class III officer.
He was convicted for offenses tinder section 161 I.P.C. and 'section 5 (2) read with section 5 (I) (d) of the Prevention of Corruption Act, 1947.
The complaint that he had received illegal gratification, was investigated into by an Inspector of Police.
The Inspector obtained permission from a First Class Magistrate for laying a trap, investigated into the case, and later, after the entire investigation was over, he obtained permission from the Magistrate to investigate into, the case.
The sanction to prosecute required under section 6(1) of the Act, was granted by the Chief Medical Officer, who was the bead of the department.
The conviction was challenged on the following grounds : (1) The investigation was without authority of law, because, under section 5A, the Inspector could not have investigated without the prior permission of a Magistrate of the First Class; (2) The permission granted by the Magistrate did not meet the requirements of law because, it was given casually and without applying his mind to the question as to whether there was any need for departing from the normal rule laid down in the section, namely, that such cases should ordinarily be investigated by an officer of the rank of Dy.
Superintendent of Police or above and there should be good reasons before a Magistrate accords permission to officers below that rank; (3) The presumption under section 4 that the appellant had accepted the sum a motive or reward should not be drawn unless the prosecution proved that the amount was paid as a bribe; (4) The presumption was rebutted by the appellant 's explanation that what was paid to him was the return of a loan; and (5) the sanction to prosecute granted by the Chief Medical Officer was invalid as lie was not the authority competent to remove him.
HELD : (1) There is no basis for the contention that any portion of ' the investigation was done without authority by law.
[567 D].
Investigation under section 4(1) Cr.
P.C. is one and indivisible and includes all the steps taken by the Inspector to ascertain the truth of the complaint alleging that the appellant was attempting to obtain a bribe.
Laying a trap, is a part of the investigation and a permission given under section 5A of the Prevention of Corruption Act enables the officer concerned not only to lay a trap but also to further investigate.
The fact that the Inspector of Police obtain the two permissions, one for laying a trap and 564 another for investigating the case, does not affect the earlier order as the second permission was wholly superfluous.
[566 G H, 567 B D] (2) The order giving permission to.
the Inspector did not give any reasons and there is thus a violation of section 5A.
But an illegality committed in the course of an investigation does not vitiate the result of a trial unless there was a miscarriage of justice.
In the present case the legality of the investigation was not challenged in the trial court and prejudice to the appellant was neither pleaded nor established.
[568 C D, F G].
(3) The presumption under section 4 arises when it is shown that the accused had received the stated amount and that the said amount was not legal remuneration.
[569 D].
(4) The words 'unless the contrary is proved ' in section 4(1) show that the presumption was to be rebutted by proof and not by a bare explanation which is merely plausible.
The 'burden testing on the accused will however be satisfied if he establishes his case by a mere preponderance of probability and it is not necessary for him to prove it beyond reasonable doubt.
In the present case, the appellant 's plea was not accepted by the trial court and the High Court and hence, it must be held that he had not discharged the burden placed on him.
[571 C E].
State of M.P. vs Mubarak Ali, , H. N. Rishbud and Inder Singh vs State of Delhi, [1955] 1 S.C.R. 1150, State of U.P. vs Bhagwant Kishore Joshi, A.I.R. , Munnalal vs State of U.P. ; , C. 1.
Emden vs State of U.P. ; , Dhanvantrai Balwantrai Desai vs State of Maharashtra, A.I.R. and V. D. Jhangan vs, State of U.P. ; , followed.
(5) Under section 6(1) (c) of the Prevention of Corruption Act, the appellant could not be prosecuted without the previous sanction of the authority competent to remove him.
Oral evidence of the officer giving sanction cannot be relied on for deciding the validity of the sanction.
The Court must be satisfied by reference to the rules on the subject.
Schedule 11 to the 1961 Rules relating to discipline and appeal of railway servants makes provision for the punishment of railway servants employed in zonal railways.
Under the Schedule I a head of a department was not competent to impose on Class III officers the punishment of removal from service.
That punishment could only be imposed by an appointing authority or any other higher authority.
Under r, 134.
the authorities competent to make first appointments to non gazetted posts are the General Manager.
the Chief Administrative Officer or a lower authority to whom he may delegate power; but the power has not been delegated to heads of departments.
Therefore, the Chief Medical Officer was neither the appointing authority nor was he competent to.
remove the appellant from his Office.
Hence he was also not competent to grant the sanction for prosecuting the appellant.
D; 573B C, H;574A B].
R. R. Chari vs State of U.P. [1963].1 S.C.R. 121, followed.


judgement:
Appeal No '.
741 of 1965.
Appeal by special leave from the judgment and decree dated April 1, 1963 of the Kerala High, CourT in Appeal Suit No. 480 of 1958.
Sarjoo Prasad and M. R. K. Pillai, for the appellant.
section V. Gupte and A. G. Pudissery, for the respondent.
The Judgment of the Court was delivered by Shah, J.
On October 9, 1950, a deed styled an "indenture of mortgage" was executed by the Cochin Chemicals and Refineries Ltd., hereinafter called 'the Company ' and N. C. John a Director of the Company, in favour of I the State of Travancore Cochin.
The relevant terms of the indenture were "In consideration of the sum of Rupees 2.5 lakhs (2,50,000) borrowed by the mortgagor No. I from the mortgagee (the receipt of which sum mortgagor No. 1 doth hereby admit and acknowledge) mortgagor No. I hereby covenants with the mortgagee as follows : (a) That the mortgagor No. I shall supply to the mortgagee 3,000 tons of groundnut cake at the rate of 600 tons per month within a period of five months commencing with the first day of November 1950 and ending with the last day of March 1951.
(b)That the account for the groundnut cakes supplied by mortgagor No. I to the mortgagee will be settled and adjusted against the loan amount of Rs. 2.5 lakhs: and interest thereon at 41 % per annum at the end of March 1951, the groundnut cakes supplied being valued at the average, price fixed by the Government during the period for purchases from other sources.
If 'on such adjustment any amount is found due to the mortgagor No. I the same will be paid by the mortgagee.
If how 558 ever it is found that the price of the groundnut cakes supplied is not sufficient to make up the loan amount with the interest thereon, mortgagor No. I shall pay the deficit amount to the,mortgagee immediately after the settlement of account.
(c)That mortgagor No. 1 shall deliver the groundnut cakes.
at any, depot in the Travancore Cochin State as may from time to time be required by the Director of Agriculture from the mortgagee free of transport charges.
" II."For the consideration aforesaid the mortgagor No. 1 hereby transfers by way of simple mortgage to the mortgagee" all the assets described in Sch. 1, "and mortgagor No. 2 hereby transfers by way of simple mortgage to the mortgagee" the assets described in Sch.
11, "to the intent that the said premises shall remain and be charged as security for the payment to the mortgagee of the said principal money, interest and costs in accordance with the Covenants herein before contained.
" III."The mortgagors hereby covenant with the mortgagee as follows: The indenture was executed by the Company and N. C. John.
and also by the Secretary to the Government of Travancore Cochin on behalf of His Highness the Rajpramukh.
A supplementary deed was executed on November 7, 1950, whereby it was agreed that Without prejudice to the right to recover the amount secured or any portion thereof as I stipulate , it shall also be recoverable under the Revenue Recovery Act for the time being in force or in other manner as the mortgagee may deem fit.
It is common ground that the amount acknowledged in the indenture was not advanced at the date of the indenture and was never advanced thereafter.
The Company arranged for the supply of goods agreed to be sold under the terms of paragraph I(a) and wrote from time to time letters to the appropriate officers of the State asking them to give instructions about the depots where the supplies were to be made.
In reply to the letter Ext.
H, the Assistant Director of Agriculture by Ext.
M, dated January 3, 1951, replied that "I write to invite your attention to my letter of even No. dated 12 12 1950 and to inform you that I shalt be placing orders for the supply of groundnut cake as soon as I get orders from Government providing the necessary funds for paying you the advance of Rs. 2 and 1 2 lakhs." 559 No instructions for supply were however given to the Company to supply the goods agreed to be purchased by the State.
The Company instituted on March 9, 1953, an action against the State of Travancore Cochin for a decree for Rs. 3,600/ being damages for failure to advance the loan of Rs. 2,50,000/ , and Rs. 1,68,600/ as damages for breach of contract to purchase 3,000 tons of groundnut cake under the indenture.
The Trial Court decreed the suit for Rs. 3,600/ being damages for failure.
to advance the loan, and for Rs. 1,23,000/ being damages for breach of contract to purchase groundnut cake.
In appeal to the High Court, the liability of the State to compensate the Company for failure to take delivery of the goods offered to be delivered alone was challenged.
The High Court confirmed the decree passed by the Trial Court negativing the contention raised on behalf of the State that the obligation to take delivery of the goods agreed to be purchased was contingent on the Government 's advancing Rs. 2,50,000/ .
The State has appealed to this Court with special leave.
Two questions arise for determination in this appeal (1) Whether under the terms of the indenture the State by refusing to advance the loan of Rs. 2,50,000/was absolved from the obligation to purchase the goods referred to in paragraph I(a) of the indenture; and (2) Whether in the circumstances of the case, the Company was not entitled to claim damages for breach by the State to purchase the goods agreed to be purchased.
The indenture incorporated two transactions: (1) a mortgage in favour of the State by the Company and N. C. John charging properties belonging to the two mortgagors for repayment of Rs. 2,50,0001/ ; and (2) the Company agreeing to sell and the State agreeing to purchase 3,000 tons of groundnut cake at the rate of 600 tons per month for five Months to be supplied at any of the depots in the Travancore Cochin State as may from time to time be designated, by.
the Director of Agriculture.
The indenture expressly recited that the amount of Rs. 2,50,000/ was ad vanced to the Company but the supplementary deed dated Nov ember 7, 1950, and the correspondence make it clear that though the money was recited to have been actually advanced, it was :pot in fact advanced but it was intended by the State Government to advance it.
For some reason where it is difficult to 'ascertain from the record, the State Government did not carry out its obligation to advance the money, after obtaining the indenture and the supplementary deed from the Company and its Director.
But even as late as January 3, 1951, as is clear from Ext.
M the Assistant Director of Agriculture reiterated the promise that the money 560 will be advanced and delivery of goods offered by the Company will be accepted.
Counsel for the State contended that so long as the loan was not advanced by the State, the mortgage was not in law effective, and the Company could not enforce the contract relating to groundnut cake agreed to be purchased by the State, for the obligation undertaken was in consideration of the loan of Rs., 2,50,000/ and arose only when the loan was advanced.
But the assumption, that if the State did not advance the loan which it had undertaken to advance, the indenture was ineffective, cannot be accepted.
There is no such express term in the deed, and none can be implied from the covenants and the surrounding circumstances.
A transaction of mortgage formally, executed does not become void or ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him.
If without advancing the *mount agreed to be advanced, he sues on the title created under the deed of mortgage, the Court will not award him a decree for anything more than what he has But that is not to say that the mortgage is invalid In Tatia vs Babaji(1),Farran, C.J., observed : "I am not, however,. . .prepared to assent to the train of thought which puts conveyances of lands in the mofussil perfected by possession or registration where the consideration expressed in the conveyance to have been aid has not in act been paid in the same category as contracts void for want of consideration.
" Similar observations were made in Rashik Lal vs Ram Narain and others( '), where Karamat Hussain, J., observed at p. 276 ". .
Mortgage under the Transfer of Property Act is a transfer of an interest in the land mortgaged, and not a mere contract.
It therefore follows that no sooner a valid mortgage deed is registered, an interest in the property mortgaged, in the absence of any contract to the contrary, vests in the mortgagee notwithstanding the fact that the mortgage money has not been paid by the mortgagee to the ' mortgagor.
The mere non payment of the mortgage money cannot have the effect of rendering the mortgage invalid.
" Sulaiman, J., in Dip Narain Singh vs Nageshar Prasad and others(2) observed that once a. document transferring immovable property has been registered, the transaction passes out of the domain of a mere contract and into one of a conveyance.
Such a completed transaction is governed by the provisions of the (1) I.L.R. (3) I.L.R. 52 All.
(2) I.L.R. 34 All.
273, 561 Transfer of Property Act and so much of the Contract Act as is applicable thereto.
The argument that because the amount was not advanced by the State to the Company, the mortgage was void or ineffective therefore cannot be accepted.
Nor do the terms of the indenture justify the plea that the liability of the State to purchase 3,000 tons of groundnut cake from the Company was conditional upon the State advancing Rs. 2 50,000/ .
The two transactions incorporated in the indenture were undoubtedly inter related.
The price payable for the supplies of groundnut was to be adjusted towards the amount advanced or to be advanced by the State.
But by failing to advance the amount the State could not avoid liability to carry out the obligation to purchase the, goods contracted to be purchased.
Even if it be assumed that the indenture incorporated reciprocal promises the State to advance Rs. 2,50,000/ and the Company to deliver 3,000 tons of groundnut cake in the absence of any express provision to that effect the contract could not be terminated by the default of the State.
Breach of contract by one party does not automatically terminate the obligation under the contract : the injured party has the option either to treat the contract as still in existence, or to regard himself as discharged.
If he accepts the discharge of the contract by the other party, the contract is at an end.
If he does not accept the discharge, he may insist on performance see the judgment of the House of Lords White and Carter (Councils) Ltd. vs McGregor(1).
The case before the House was a Scottish case, but the law of Scotland is not different on the matter under consideration from the English law, and the Indian Contract Act closely follows the English Common Law in that matter.
It cannot, therefore, be said that by refusing to advance the loan which the State had undertaken to advance, the obligation to purchase groundnut cake from the Company came to an end.
Nor is there any substance in the, second contention that the State was by its default liable to compensate the Company only for loss arising out of its failure to advance the money, and not out of its failure to purchase the goods.
The State had undertaken to advance Rs. 2,50,000/ to the Company.
It had also undertaken to take delivery of 3,000 tons of groundnut cake offered by the Company under the terms of contract of sale.
These were two independent, though inter related transactions, and by committing a breach of its own, obligation to advance the sum of Rs. 2,50,000/the State did not absolve itself from liability for the breach arising from the refusal to take delivery of the goods offered.
The cause, of action arising out of the refusal to take delivery of the goods offered was independent of the cause of action arising out of the (1) [1962] A.C.413=[1961] 3 AII.
E.R.1178. 562 breach committed by the State in not advancing the loan.
The two causes of action were cumulative and not alternative.
There is therefore no warrant for the plea that by claiming damages for loss suffered by it as a result of the failure to advance the loan, the Company elected to give up its claim for damages for breach of the contract to take delivery of 3,000 tons ' of groundnut cake by the State.
The appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
A mortgage deed was executed by the respondent company and one of its directors in favour 'of the State of Kerala.
It was provided inter alia by the terms of the deed that in consideration of the State granting a loan of a sum of Rs. 2.5 lakhs to the company, the latter would supply to the State 3,000 tons of ground ,nut cake within a specified period and make deliveries in accordance with instructions to be given by the State, and the account for this supply will be adjusted against the loan amount and the interest thereon.
It was common ground however that the loan amount, though acknowledged in the mortgage deed as received by the company, was never in fact advanced by the State.
The respondent company arranged for the supply of goods as agreed and sought the necessary instructions for delivery, but, these we 're never given.
The company instituted a suit in March 1953 against the appellant State for damages for failure to, advance the loan amount and for breach of contract to purchase the groundnut cake.
The trial court decreased the suit for Rs. 36,000 being damages for failure to advance the loan and for Rs. 1,23,000 as damages for breach of contract.
An appeal to the High Court challenging the liability of the State to compensate the company for failure to take delivery of the goods was dismissed.
It was contended on behalf of the State that the obligation to take delivery of the goods agreed to be purchased was contingent upon the Government 's advancing the loan amount, so long as the amount was not advanced by the State, the mortgage was not in law effective and the Company could not enforce the contract relating to ground nut cake a. reed to be purchased by the State.
, HELD : Dismissing the appeal) A transaction of mortgage formally executed does not become void or ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him.
Under the terms of the mortgage deed liability of the State to purchase the groundnut cake.
from the Company was not made conditional upon the State advancing the loan.
By failing to advance the loan amount the State could not avoid liability to carry out the obligation to purchase the goods contracted to be purchased.
Even if it be assumed that the indenture incorporated reciprocal promises, in the absence of any express provision to that effect the contract could not be terminated by the default of the State.
Breach of contract by one party does not automatically terminate the obligation under the contract : the injured party has the option either to treat the contract as still in existence, or to regard himself as discharged.
If he accepts the discharge of the contract by the other party, the contract is 557 at an end.
If he does not accept the discharge, he may insist on performance.
[560 C D; 561 D].
Tatia v Babaji, I.L.R. , Rashik Lal vs Ram Narain and Others, I.L.R. 34 All.
273, Dip Narain Singh V. Nageshar Prasad and Others, I.L.R. 52 All.
338, White and Carter (Councils) Ltd., vs Mc Gregor, ; referred to.
There was no substance in the, contention, that the State was by its default liable to, compensate the Company only for loss arising out of its failure to advance the money, and not out of its 'failure to purchase the goods.
The State 's undertakings to advance the loan and to take delivery of ground nut cake were two independent, though inter related transactions; and by committing a breach of its own obligation to advance the loan, the State did not absolve itself from liability for the breach arising from its refusal to take delivery of the goods offered [561 F H].


judgement:
Appeals Nos. 484 and 485 of 1965.
Appeals by special leave from the judgment and decree dated December 14, 1959 of the Madras High Court in Appeals Nos. 808 and 746 of 1954.
S.T. Desai, P. C. Bhartari, and J., B. Dadachanji, for the appellants (in both the appeals).
A.V. Rangam, for respondents Nos.
I to 3 (in C.A. No. 484 of 1965).
R. Gopalakrishnan, for respondents Nos.
I to 3 (In C.A. No.485 of1965).
B. Dutta, for respondents Nos. 4, 9 and II (in C.A. No. 484 of 1965) and respondents Nos.
13 to 17 and 20 (in C.A. No. 485 of 1965).
544 The Judgment of the Court was delivered by Bachawat, J.
In the village of Thenkarai in the Madurai District there is an ancient temple of Sri Thirumoolanathaswami.
Inams were granted by Hindu kings for performance of services ,of watchman, palanquin bearer, background music player, dancing girl, musical instrument player, mason, blacksmith carpenter, potter, washerman connected with the temple.
The inams were confirmed by the British Government.
For over 80 years, the inams were in the enjoyment of alienees from inamdars.
By an order passed on April 10, 1947 under section 44 B of the Madras Hindu Religious Endowments Act, the Revenue Divisional Officer, Usilampatti resumed the inam lands and regranted them to the temple.
On October 17, 1947, this order was confirmed on appeal by the District Collector.
The Revenue Divisional Officer and the District Collector held that the inams comprised both melwaram and kudiwaram rights in the land.
The orders were passed ,on notice to the alienees.
The alienees instituted a suit in the ,Court of the Subordinate Judge, Madurai under the proviso to section 44 B(2)(d)(ii) asking for a decree declaring that the inam grants consisted of the melwaram only.
The suit was withdrawn to the Court of the District Judge, Madurai and registered as O.S. No. 3 of 1954.
They, instituted another suit in the Court of the Sub ordinate Judge, Madurai, asking for a decree declaring that the ,order of the Collector dated October 17, 1947 was a nullity.
This suit was transferred to the Court of the District Judge and registered as O.S. No. 4 of 1954.
The District Judge dismissed O.S. No. 3 of 1954.
He decreed O.S. No. 4 of 1954 and declared that the order resuming the inam lands was illegal and a nullity.
The plaintiffs filed an appeal registered as A.S. No. 746 of 1954 in the High Court of Madras from the decree in O.S. No. 3 of 1954.
The High Court dismissed the appeal.
The State of Madras filed an appeal registered as A.S. No. 808 of 1954 from the decree in O.S. No. 4 of 1954.
The High Court allowed the appeal and dismissed the suit with respect to all the inams except the Dasi inam.
Regarding the Dasi inam, the High Court dismissed the appeal as the inam was enfranchised and could not be resumed.
It is from the decree of the High Court dismissing the suits in respect of the other inams that the plaintiffs have filed these appeals after obtaining special leave.
The two courts concurrently held that the inams comprised both the kudiwaram and the melwaram.
The District Judge held that the right to resume an inam could not be extinguished by adverse possession, and that, in any event, the claim of adverse possession was not established.
The High Court held that assuming the right of resumption could be so extinguished, it was not established that the plaintiffs and their predecessors in title were in pOS session of the inam lands adversely to the inamdars or the Gov 545 ernment.
The District Judge held that the inams were personal inams burdened with services and the order of resumption was therefore illegal and a nullity.
The High Court reversed this finding and held that the inams were for performance of services connected with the temple and were resumable under section 44 B. The District Judge held that section 44 B was retrospective in operation.
On this last point, the High Court did not express any opinion.
It may be noted that O.S. Nos. 3 and 4 of 1954 were tried along with O.S. Nos.
I and 2 of 1954 and disposed of by the District Judge by a common judgment.
O.S. Nos. 1 and 2 of 1954 related to inams granted for performance of puja in another temple.
From the decrees passed in O.S. Nos. 1 and 2 of 1954, there were appeals to the High Court and subsequently appeals to this Court.
The judgment in those appeals is reported in Roman Catholic Mission vs State of Madras(1).
One of the points in all the four suits was whether section 44 B was ultra vires the powers of the legislature.
This Court held that the Provincial Legislature was competent to enact section 44 B and the amendment to it.
On behalf of the appellants, Mr.S. T. Desai submitted that (1) the inam grants did not comprise the kudiwaram; (2) the inams were personal inams burdened with services and were not resumable under section 44 B; (3) Section 44 B (2) was not retrospective in operation and did not authorise resumption of the inams on the ground of any alienation thereof made before 1934; (4) there was no alienation of the inams as contemplated by section 44 B (2) (a) (i) and (5) the right of resumption of the inam lands was extinguished by adverse possession of the lands by the alienees for over 60 years.
The Madras Hindu Religious Endowments Act, 1926 (Madras Act II of 1927) was passed on January 19, 1927.
Section 44 B was inserted in the present Act by Madras Act XI of 1934 and was later amended by Madras Act V of 1944 and Madras Act, of 1946.
This section corresponds to section 35 of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act XIX of 1951) which repealed Act II of 1927.
The material provisions of section 44 B are in these terms : "44 B. (1) Any exchange, gift, sale or mortgage, and any lease for a term exceeding five years, of the whole or any portion of any inam granted for the support or maintenance of a math or temple or for the performance of a charity or service connected therewith and made, confirmed or recognised by the British Government, shall be null and void.
Explanation.
Nothing contained in this sub section shall affect or derogate from the rights and obligations (1) ; 546 of the landholder and tenant in respect of any land as de fined in the Madras Estates Land Act, 1908.
(2)(a) The Collector, may on his own motion, or on the application of the trustee of the math or temple or of the Assistant Commissioner or of the Board or of any person having interest in the math or temple who has obtained the consent of such trustee, Assistant Commissioner or Board, by order, resume the whole or any part of any such inam, on one or more of the following grounds, namely : (i) that the holder of such inam or part has made an exchange, gift, sale or mortgage of the same or any portion thereof or has granted a lease of the same or any portion thereof for term exceeding five years, or (ii) that the holder of such inam or part has failed to perform or make the necessary arrangements for performing, in accordance with the custom or usage of such math or temple, the charity or service for performing which the inam had been made, confirmed or recognised by the British Government, or any part of the said charity or service, as the case may be, or (iii) that the math or temple has ceased to exist or the charity or service in question has in any way become impossible of performance.
When passing an order under this clause, the Collector shall determine whether such inam or the inam comprising such part, as the case may be, is a grant of both the melwaram and the kudiwaram or only of the melwaram.
(f)Where any main or part of an inam is resumed under this section, the Collector or the District Collector, as the case 'may be, shall, by order, regrant such inam or part (i)as on endowment to the math or temple concerned,or (ii)in case of resumption on the ground that the math or temple has ceased to exist or that the charity or service in question has in any way become impossible of performance, as an endowment to the Board, for appropriation to such religious, educational or charitable .,purposes not inconsistent with the objects of such math or temple, as the Board may direct.
" 547 The inam title deeds, the entries in the inam fair register prepared at the time of the confirmation of the inams by the Inams Commissioner in 1863 and the contemporaneous statement made by the inamdars are of the same pattern in respect of all the inams.
It is sufficient to refer to Exs.
B 4, B 5 and B 6 relating to the inam for the service of Sree Padarn Thangi (palanquin bearers).
The statement, exhibit B 4, shows that in fasli 1272 corresponding to 1862 63, Veerabadra Mudali, Periasami Mudali, Andiappa Mudali were in enjoyment of the inam and rendering the service under the direction of the Paisaldars or the trustees of the temple.
They made the following statement: "For taking the deities in procession round the village during the festival in the temple of Tirumulanathaswami and Akilandeswari Amman in the village of Kovil Thenkarai the aforesaid land has been granted as inam.
The paisaldars appointed our ancestors and got service from them.
The aforesaid manyam was in their enjoyment.
Afterwards the manyam was divided and during fasli 36, it was registered in the name of myself individual No. 1 and in the names of the fathers of individuals Nos. 2 and 3.
They were rendering the service and enjoying manyam and in the same manner.
We have been rendering the aforesaid service and enjoying the manyam.
" The entries in the inam fair register, exhibit B 5 show that the inam belonged to the category of Devadayam and was for the service, of Sree Padam Thangi which was being then rendered, that the original grant was made to the temple before fasli 1212 corresponding to 18023, and that in 1863 the inam was being enjoyed by Verrabadra Mudali, Periasami Mudali and Andiappa Mudali.
The title deed acknowledged their title to Devadayan or pagoda service inam to 11.47 acres of land held for the service of Sree Padam Thangi and confirmed the inam to them and their successors tax free to be held without interference so long as the conditions of the grant were duly fulfilled.
Those documents show that the lands were being enjoyed by the inamdars and were granted as inams.
The amount of the assessment or melwaram was very low and could not be an ade quate remuneration.
for the services to be rendered.
The plaintiffs claimed title to the lands under a grant from the inamdars on the footing that the inamdars were entitled to the kudiwaram and the melwaram.
The conclusion is irresistible that the inam comprised both the warams.
The inams were originally granted, to the temple for the performance of services connected therewith.
The trustees of the temple appointed persons to perform those services and placed the inams in their possession to be enjoyed by them as remuneration for the services to be rendered by them.
The Inam Commission confirmed the grants of the inams in favour of the hereditary officeholders then rendering the services.
Where there were several 548 holders of the office, the inams were shown to be in their enjoyment in equal shares.
It is quite clear that the inams were granted .to the holders of hereditary offices as remuneration for services to be rendered by them in connection with the temple.
There is a well recognised distinction between the grant of the land burdened with a condition of service and the grant of land as remuneration for an office, see, Forbes vs Noor Mahomed Tuquee(1).
Section 44 B does not apply to a personal inam burdened with a condition of service, See P. V. Bheemsena Rao vs Siyrigiri Pedda Yella Reddi(2).
It applies to an inam granted to an ,office holder as remuneration for his services connected with a math or temple as also to an inam granted to the institution direc tly.
The inams in the present case were not personal inams.
They were inams granted to office holders as remuneration for services to be rendered by them and were within the purview of 44 B.
The next question is whether section 44 B allows resumption of an inam falling within the purview of the section where the inam was alienated before the section came into force in 1934.
Subsection (1) of section 44 B renders null and void certain alienations of the inam.
Sub section (2) authorises resumption of the inam on certain grounds.
Sub section (2) is not dependent upon sub sec.
(1) and allows resumption even in cases where there has been no alienation of the inam.
In the present case, we are not concerned with the retrospective operation of sub see.
(1) of section 44 B, and we express no opinion on it.
But there can be no doubt that section 44 B (2)(a)(i) allows a resumption of the inam where there has ,been an alienation of the inam either before or after 1934.
Even apart from section 44 B, any inam whatever its nature could be resumed for failure to perform the conditions of the grant.
Subject to certain restrictions and safeguards, paragraph 2 of the Board 's Standing Order No. 54 permitted resumption of religious and charitable inams on the ground that the land was alienated or otherwise lost to the institution or service to which it once belonged or on the ground that the terms of the grant were not observed.
The object ,of section 44 B was to define and enlarge the, grounds on which the inams could be resumed and to devise a proper procedure for the resumption.
On general grounds of public policy, the legislature has declared that the inam may be resumed on any of the three grounds mentioned therein.
The first ground is that the holder of the inam has made an alienation.
The words "has made" in sub. section (2)(a)(i) takes in all alienations past and future and not only future alienations or alienations made after the section came into force. ' If there has been any alienation at any time the first ground ,exists and the inam may be resumed under section 44 B.
The words "has failed" in sub.
section
(2)(a)(ii) and the words "has ceased" and (1) (1870) 13 H.I.A.438,464.
(2) ; 549 "has become" in sub.
section
(2)(a)(iii) similarly authorise resumption of the inam if the other grounds exist though they may have arisen earlier.
Section 44 B(2) is in its direct operation prospective as it authorises only future resumption after it came into force.
It is not properly called retrospective "because a part of the requisites for its action is drawn from a time antecedent to its passing," See Maxwell on Interpretation of Statutes, 1 1 the, p. 21 1.
The, inams in the present case are resumable under section 44 B(2)(a)(i) though the alienations were made before 1934.
Section 44 B(2)(a)(i) is attracted if the holder of the inam has made an exchange, gift, sale or mortgage of the inam or has granted a lease of it for a term exceeding five years.
In the plaint in Suit O.S. No. 4 of 1954 the plaintiffs claimed that one Kunjanna Ayyar, their predecessor in title purchased the lands from the inamdars before 1861.
The plaintiffs failed to prove that the inamdars sold the lands.
The only direct evidence as to how Kunjanna Ayyar came into possession of the suit lands is furnished by exhibit A 2, a statement made by the inam holders to the Madurai District Collector on August 14, 1868.
It shows that Kunjanna Ayyar had taken the lands on cowle from the inamdars.
The word "cowle" means a lease.
In Wilson 's Glossary it is stated that the word ordinarily denotes a lease and not a mortgage.
Before the District Collector the plaintiffs admitted that they were holding under a cowle lease.
The District Collector held that the alienation was within the purview of section 44 B. The High Court also held that the plaintiffs and their predecessor in title were in enjoyment of the lands under the lease.
At no stage of the litigation either before the revenue authorities or in the plaint or before the District Judge or in the High Court did the plaintiffs contend that the alienation in their favour was not within the purview of section 44 B (2) (a) (i).
As a matter of fact, the case made in the plaint was that their predecessor in title had purchased the land from the inamdars.
Such an alienation is clearly within the purview of section 44 B(2)(a)(i).
For the first time in this Court it is contended that the alienation was by way of a lease from year to year.
It may be conceded that all lease& do not come within the purview of section 44 B(2)(a)(i).
The km must be for a term exceed ' 5 years.
A lease from year to year is not a lease for a term exceeding 5 years howsoever long the lessee might have continued in possession of the demised lands.
But we think that the plaintiffs ought not to be allowed to raise at this late stage the novel contention that the lease was from year to year '.
This contention is contrary to the case made by them in the plaint.
Moreover, the materials on the record do not support the contention.
The plaintiffs and their predecessor in title were in continuous possession of the lands for over 80 years under the cowle lease.
The original cowle is not forthcoming.
The plaintiffs claimed to be permanent alienees of the lands.
In all these circumstances, we are inclined to presume that the cowle granted 550 a permanent lease and the inams were resumable under section 44 B (2)(a)(i).
There is no period of limitation prescribed for the initiation of proceedings under section 44 B(2).
The section gave a new statutory right of resumption of the inams.
On a resumption of the inams, the title, if any, of all persons claiming through the inamdars to any subordinate interest in the inams stood determined.
Kunjanna Ayyar and his successors in title were lessees of the inam lands under the inamdars.
During the continuance of the tenancy, their possession was not adverse to the inamdars.
A fortiori, their possession *as not adverse to the Government under whom the inamdars held the inam lands.
They did not acquire any prescriptive title to the kudiwaram rights either against the inamdars or against the Government.
The Government could, therefore, resume the inam lands made under section 44 B(2) and dispossess the inamdars and the plaintiffs claiming as lessees under them.
The question whether an alienee from the inamdar can acquire prescriptive title to the kudiwaram rights in the inam lands against the Government and thereby defeat the latter 's right to resume the inam does not, therefore, arise for decision, and we express no opinion on it.
It, may be noted that in Roman Catholic Mission vs State of Madras( ') this Court held that there is no limitation barring imposition of assessment on the land after resuming the melwaram.
It follows that both the kudiwaram and melwaram rights were rightly resumed under section 44 B(2)(4)(i).
In the result, the appeals are dismissed.
In all the circumstances of the case, there will be no order as to costs.
G.C. Appeals dismissed.
(1) [1966] 3 S.C.R.283,299.

summary:
Inams were granted by Hindu kings for performance of certain servicer, (e.g. watchmen, music players etc.) in the ancient temple, of Thirumoolanathaswami.
The inams were confirmed by the British Government.
For over 80 years the inams were enjoyed by alienees from the inamdars.
By an order passed on April 10, 1947 under section 44 B of the Madras Hindu Religious Endowments Act, 1926, the Revenue Divisional Officer resumed the inam lands and regranted them to the temple.
His order was confirmed on appeal by the District Collector.
Both these authorities held that the inams comprised both melwaram and kudiwaram rights.
The alienees instituted a suit in the Court of the Subordinate Judge under the proviso to section 44 B (2) (d) (ii) asking for a decree declaring that the inam grants consisted of the melwaram only.
They filed another suit asking for a declaration that the aforesaid order passed by the Collector was a nullity.
In appeals against the order of the trial judge the High Court decided against the plaintiffs except as regards Dasi inams.
Against the High court 's order the plaintiff appellants came to this Court.
It was contended on their behalf that : (i) the inam grants did not comprise the Kudiwaram; (ii) the inams were personal inams burdened with services and were not resumable under s.(iii) Section 44 B(2) was not retrospective in operation and did not authorise resumption of the inams on the ground of any alienation thereof made before 1934 when it came (iv)there was no alienation of the inams as contemplated by section 44 B (2) (a) (i); and (v) the tight of resumption of the inam lands was extinguished by adverse possession of the lands by the alienees for 60 years.
HELD: (i) The documents in evidence showed that the lands were being enjoyed by the inamdars and were granted as inams.
The amount of the assesment or melwaram was very low and could not be an adequate remuneration for the services to be rendered.
The plaintiffs claimed title to the lands under a grant from the inamdars on the footing that the inamdars were entitled to the kudiwaram and the melwaram.
The conclusion is irresistible that the inam comprised both the warams.[547 F G] (ii) There is a well recognised distinction between the grant of the land burdened with a condition of service and the grant of land as remuneration for an office.
Section 44 B does not apply to a personal inam burdened with a condition of service.
It applies to an inam granted to an office holder as remuneration for his services connected with a math or temple as also to an inam granted to the institution directly.
The inams in the present cases were not personal inams.
They were inams granted 543 to office holders as remuneration for services to be rendered by them and were within the purview of section 44 B. [548 B C].
(iii) The words 'has made ' in section 44 B(2)(a)(i) take in all alienations past and future and not only future alienations or alienation made after the section came into force.
Section 44 B(2) is in its direct operation prospective as it authorises only future resumption after it came into force.
It is not properly called retrospective "because a part of the requisites for its action is drawn, from , a time antecedent to its passing.
" The inams in the present case were resumable under section 44B(2)(a)(i) though the alienations were made before 1934.
[548 G 549B].
Maxwell on interpretation on Statutes 11th Ed., p. 211, relied on.
(iv) The appellants admitted that they held the land from the inamdars under a cowle lease and at no earlier stage did the appellants contend that the lease was not within the purview of section 44 B(2)(a)(i).
The plea that the lease was from year to year and hence outside the purview of the section could not be allowed to be raised for the first time in this Court.
[849 E H].
(v) The appellants being lessees their possession was not adverse to the inamdars.
A fortiori, their possession was not adverse to the Government under whom the inamdars held the inam lands.
They did not acquire any prescriptive title to the kudiwaram rights either against the inamdars or against the Government.
The Government could therefore resume the inam lands under section 44 B(2) and dispossess the inamdars and the plaintiffs claiming as lessees under then.
[550 B C].
[The question whether an alienee from the inamdar can acquire a prescriptive title to the kudiwaram rights in the inam lands and thereby defeat the latter 's right to resume the inam did not on the above view arise for decision and the court therefore expressed no opinion on it.] Roman Catholic Mission vs State of Madras, [1966] 3 S.C.R. 283, referred to.
Forbes vs Noor Mahomed Tuquee, [1870] 13 M.I.A. 438, 464 and P V. Dheenuena Rao vs Sirigiri Pedda Yella Reddi, ; , relied on.


judgement:
iminal Appeal No.232 of 1967.
Appeal by special leave from the judgment and order dated August 30, 1967 of the Assam and Nagaland High, Court in Criminal Appeal No. 115 of 1964.
K. Rajendra Chaudhuri, for the appellants, Naunit Lal, for the respondent, 611 The Judgment of the Court was delivered by Bhargava, J.
The appellants, Iman Ali and Jogesh Chandra Arjya, were convicted by the Court of Session for an, offence punishable under section 396 of the Indian Penal Code and sentenced to imprisonment for life.
The facts found by the Court of Session for convicting the appellants were that, on the night between 11th and 12th May, 1962, between 1 and 2 a.m., the appellants, along with about 12 or 13 others, committed dacoity in the house of I Tenu Arjya.
At the time of committing the dacoity the dacoits broke open the door of the house with the cross bar of a plough.
Four dacoits, including the two appellants, entered the house, while the remaining persons remained standing outside.
As soon, as the door was broken, Golapi, the wife of Tenu Arjya.
was shot at with a gun by Iman Ali appellant, and then the other appellant Jogesh Chandra Arjya shot Tenu Arjya.
Both Golapi and her husband Tenu Arjya fell down dead.
Thereafter, the dacoits demanded money from Hari Charan Arjya, the son of the two deceased persons.
They took away a sum of Rs. 2,500/ which was kept in a quilt and also removed the gold ear rings, one silver necklace and one waist band from the person of Golapi.
The commission of this offence in the manner described above was held ' by the Sessions Court to be proved on the basis of the evidence given by the prosecution, and, thereupon, finding both the appellants guilty of the offence punishable under section 396, I.P.C., that court sentenced each of these appellants to imprisonment for life.
Iman Ali appellant filed an appeal in the High Court of Assam and Nagaland.
The learned Judges of the High Court, on perusing the judgment, were of the prima facie opinion that, if the conviction of Iman Ali was to be upheld, there was no justification for not awarding to him the sentence of death and, consequently, they issued notice to Iman Ali to show cause why the sentence should not be enhanced.
At the same time, a notice was also issued to, the other appellant Jogesh Chandra Arjya by the learned Judges suo motu to show cause why his sentence should also not be enhanced to sentence of death.
Thereafter, the appeal of Iman Ali was heard and both the appellants were heard in respect of the show cause notices issued to them, Opportunity was, in addition, offered to Jogesh Chandra Arjya to urge whatever could be said on his behalf against his conviction also.
The High Court affirmed the findings of fact of the Court of Session and enhanced the sentence of both these appellants, so that the sentence of rigorous imprisonment for life ",as altered to sentence of death, with the direction that they be hanged by the neck till they are dead.
Both the appellants Sought leave, from the High Court to appeal to this Court, but leave was refused.
Thereupon, both of them sought special leave under Article 136 of the Constitution.
By in order dated 8th December, 1967, this Court ranted special leave limit 612 ed to the question whether, in this case, the enhancement of the sentence from life imprisonment to sentence of death was justified.
Consequently, in this appeal, the only point that falls for determination is whether the order of the High Court enhancing the sentence of the appellants from life imprisonment to death was justified and should be upheld.
Learned counsel for the appellants, in challenging the justification for the order of enhancement of sentence by the High Court, relied on the principle laid down by this Court in Dalip Singh and Others vs State of Punjab (1), which was explained in the following words "In a case of murder, the death sentence should ordinarily be imposed unless the trying Judge for reasons which should normally be recorded considers it proper to award the lesser penalty.
But the discretion is his and if he gives reasons on which a judicial mind could properly be found, an appellate court should not interfere.
The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons.
It is not enough for an appellate court to say, or think, that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge and the only ground on which an appellate court can interfere is that the discretion has been improperly exercised, as for example, where no reasons are given and none can be inferred from the circumstances of the case, or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty.
" It appears to us, however, that, in the present case, this principle is of no assistance to the appellants for challenging the step taken by the High Court.
This Court cautioned the appellate court against interfering if the discretion of the trying Judge is exercised for reasons recorded by him and if it appears from the reasons that he had exercised a judicial mind in not awarding the sentence of death.
In the present case, as mentioned by the High Court and as is apparent from the judgment of the Court of Session, the trial court awarded the sentence of imprisonment for life without giving any reasons at all for adopting that course.
It is true that the appellants were not convicted in the present case for the offence of murder simpliciter under section 302, I.P.C.; but that, in our opinion, is immaterial.
The conviction of the appellants under s ' 396, I.P.C., was not based on constructive liability as members of the gang of dacoits.
There was clear finding by the (1) ; at p. 156. 613 Court of Session which has been upheld by the High Court that each of these appellants committed a cold blooded murder by shooting two inmates of the house simply with the object of facilitating commission of dacoity by them.
Those persons were shot and killed even though they had not even tried to put up any resistance.
The offence under section 396, I.P.C., was therefore, no less heinous than an offence under section 302, I.P.C.
In these circumstances, when the Court of Session gave no reason at all for not awarding the sentence of death and for sentencing them to imprisonment for life only, it cannot be held that the High Court was not justified in interfering with that order.
Learned counsel in this connection referred us to a decision of a Division Bench of the Allahabad High Court in Lal Singh vs Emperor(1), where it was held : "We do not consider that as a general rule a sentence of death should necessarily follow a conviction under section 396, I.P.C., and this Section differs from section 302, I.P.C., in that respect.
The rule is under section 302, that a sentence of death should follow unless reasons are shown for giving a lesser sentence.
No such rule applies to section 396, I.P.C." Again, we do not think that the learned Judges of the Allahabad High Court intended to lay down that, even in cases where a person is convicted for the offence under section 396, I.P.C., and there is clear evidence that he himself had committed a cold blooded murder in committing the dacoity, a sentence of death should not follow.
Clearly, the view expressed was meant to apply to those cases where there could be no definite finding as to which person committed the murder and all the members of the gang are held constructively guilty of the offence punishable under section 396, I.P.C. A principle enunciated for such a situation cannot be applied to a case where there is direct evidence that a particular accused committed the murder himself, as is the finding in the present case.
In these circumstances, the order made by the High Court must be held to be justified and the appeal is dismissed.
G.C. Appeal dismissed.
(1) A.I.R. 1938 Alld.

summary:
The appellants were convicted by the court of sessions for an offence punishable under section 396 of the Indian Penal Code and sentenced to imprisonment for life.
They were held to have shot dead two inmates of a house in which along with others they had gone to commit dacoity.
One of the appellants filed an appeal in the High Court against his conviction.
The High Court thereafter gave notice to both the appellants to show cause why the sentence of imprisonment passed against each of them should not be enhanced to death.
After hearing them the High Court sentenced them both to death.
The order was challenged in this Court and it was urged that the High Court should not have interfered with the discretion of the Sessions Judge in the matter of passing the appropriate sentence and that the considerations which apply to I sentence under section 302 I.P.C. would not apply to a case under section 396 I.P.C. HELD : (i) The offence committed by the appellants was heinous and committed in cold blood with the sole object of committing dacoity.
It was not a case of constructive liability but the appellants had themselves committed the murders and therefore no advantage could be taken of the fact that the conviction was under section 396 and not under section 302.
On the above facts the enhancement of sentence by the High Court from life imprisonment to death was justified especially when the trial court had not given any reasons for awarding the lesser sentence.
In Dalip Singh 's case this Court only cautioned the appellate court against interfering if the discretion of the trying judge is exercised for reasons recorded by him and if it appears from the reasons that he had exercised a judicial mind in not awarding the sentence of death.
[612 F 613B].
Dalip Singh & Ors.
vs State of Punjab ; , 156, explained.
Lal Singh vs Emperor, A.I.R. 1938 Alld.
625, distinguished.