judgement:
N: Criminal Appeal No. 313 of 1974.
Appeal by Special Leave from the Judgment and Order dated 23 7 1973 of the Bombay High Court in Crl.
Appeal No. 759/73.
Harjinder Singh for the Appellant.
O.P. Rana and R.N. Podar for the Respondent.
289 The Order of the Court was delivered by FAZAL ALI, J.
In this appeal by special leave the appellant has been convicted under section 302 Indian Penal Code and sentenced to imprisonment for life.
After having gone through the judgment of the Sessions Judge and the grounds taken by the appellant in his appeal by special leave we are satisfied that this case does raise some arguable points which merit serious consideration by the High Court.
We would like to point out that although under section 421 of the Code of Criminal Procedure, 1898 which is section 384 of the Code of Criminal Procedure, 1973 the High Court has the undoubted power to summarily dismiss a first appeal against conviction of an accused yet in very serious cases like those under section 302 Indian Penal Code, or other cases where death or life imprisonment can be awarded, the High Court should consider the appeal on merits instead of dismissing it summarily, unless the evidence is so clear and cogent, reliable and creditworthy that on the face of it no case for the barest consideration is made out.
This Court in Govinda Kadtuji Kadam and Ors.
vs State of Maharastra while laying down the guidelines for dismissing an appeal summarily observed as follows: "The summary decision is accordingly a judicial decision which vitally affects the convicted appellant and in a fit case it is also open to challenge on appeal in this Court.
An order summarily dismissing an appeal by the word 'rejected ', as is the case before us, though not violative of any statutory provision removes nearly every opportunity for detection of errors in the order.
Such an order does not speak and is inscrutable giving no indication of the reasoning underlying it.
It may at times embarrass this Court when the order appealed against prima facie gives rise to arguable points which this Court is required to consider without having the benefit of the views of the High Court on those points.
In our opinion, therefore, when an appeal in the High Court raises a serious and substantial point which is prima facie arguable it is improper for that Court to dismiss it summarily without giving some indication of its view on the points raised.
" To the same effect is the later decision of this Court in Sita Ram and Ors.
vs State of U.P. where this Court reiterated as follows: 290 "The order summarily dismissing an appeal by the High Court by the word 'rejected ' is not violative of any statutory provision.
While holding that a summary rejection of the appeal by the High Court is not violative of any statutory provision, this Court pointed out that it is desirable that reasons are recorded by the High Court when prima facie arguable issues have been raised as that would enable the Supreme Court to appreciate the reasons for rejection of the appeal by the High Court.
" We, therefore, hold that even if the High Court chooses to dismiss the appeal summarily some brief reasons should be given so as to enable this Court to judge whether or not the case requires any further examination.
If no reasons are given then the task of this Court becomes onerous inasmuch as we have to perform the function of the High Court itself by reappraising the entire evidence resulting in serious harassment and expense to the accused.
In these circumstances, we set aside the order of the High Court dismissing the appeal and direct the High Court to re admit the appeal and hear it according to law within three months from today, as far as practicable.
As the case is a very old one the High Court should give top priority to the case.
The entire record and the paper books which have been prepared in this Court should be sent to the High Court which has only to hear the counsel for the parties and decide the case.
V.D.K. Appeal allowed.

summary:
Although under section 421 of the Code of Criminal Procedure, 1898 (which is section 384 of the Code of Criminal Procedure, 1973) the High Court has the undoubted power to summarily dismiss a first appeal against conviction of an accused yet in very serious cases like those under section 302 Indian Penal Code, or other cases where death or life imprisonment can be awarded, the High Court should consider the appeal on merits instead of dismissing it summarily, unless the evidence is so clear and cogent, reliable and creditworthy that on the face of it no case for the barest consideration is made out.
Even if the High Court chooses to dismiss the appeal summarily some brief reasons should be given so as to enable the Supreme Court to judge whether or not the case requires any further examination.
If no reasons are given then the task of the Supreme Court becomes onerous in as much as the Judges have to perform the function of the High Court itself by reappraising the entire evidence resulting in serious harassment and expense to the accused.
[289 C, 290 C] Govinda Kadtuji Kadam and Ors.
vs State of Maharashtra, ; and Sita Ram & Ors.
vs State of U.P. ; , followed.


judgement:
Civil Appeal No. 775 of 1981.
Appeal by Special Leave from the Judgment and Order dated 21.12.78 of the High Court of Allahabad in C.M.W.P. No. 12602/77.
section N. Kacker and Prem Malhotra for the Appellant.
O. P. Rana and section Dikshit for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment dated December 21, 1978 of the Allahabad High Court allowing the writ petition filed by the State of U.P. before the Court.
The case arose out of an order passed by the Prescribed Authority under the U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the 'Act '), as amended uptodate, by which the said Authority rejected the claim of the petitioners on the basis of a gift which had been executed by her grandfather by a registered document dated January 28, 1972.
The Act was passed as far back as 1960 but by virtue of an amendment, being U.P. Act No. 18 of 1973, section 5 was introduced which placed a ceiling on any tenure holder to hold land in excess of the ceiling area fixed under the Act.
Section 5 contained various sub sections but in the instant case we are concerned only with sub section (6) as also clause (b) of the proviso to the said sub section.
By another amendment, being U.P. Act No. 2 of 1975, which was given retrospective operation with effect from 8.6.1973 Explanation I, alongwith its sub clauses, was added to sub section (6) of section 5.
The decision in the present case turns upon the interpretation of sub section (6) of section 5 and the proviso therein in order to determine the validity of the deed of gift said to have been executed by Chunni Lal Bhatiya, the grandfather of the petitioner Sonia and respondent No. 4 before the District Judge.
To begin with, we might like to state here that the facts of the case undoubtedly reveal that if the provisions of the said sub section (6) were to apply it would work serious hardship to the petitioner but as we are concerned with interpretation of an important statute the mere fact that a correct interpretation may lead to hardship would not be a valid consideration for distorting the language of the statutory provisions.
243 Before we proceed to examine the relevant provisions, it may be necessary to give a resume of the facts of the case.
Chunni Lal Bhatiya had two sons, Sudesh and Mahesh and a daughter Smt.
Sarla, On 14.9.1969 Chunni Lal executed a registered deed of gift in respect of 110 bighas in favour of his son, Sudesh.
A month later, another deed of gift was executed in favour of his son, Sudhir.
So far as these two gifts are concerned, as they were made before the amendment of the Ceiling Act, their validity was beyond question and they are not the subject matter of any dispute in the present case.
On January 28, 1972 Chunni Lal executed a gift in respect of 80 bighas in favour of his grand daughter, Sonia (daughter of Mahesh.) It appears that a serious misfortune had befallen Chunni Lal in that he lost his two sons, Sudesh and Mahesh, who were serving in the Air Force and died in two different air crashes.
As Chunni Lal wanted to make sufficient provision for his grandsons and grand daughter, he executed the three gifts.
The gift executed in favour of Sonia is the subject matter of the dispute in the instant case.
The Prescribed Authority held that as the gift was made after the due date, i.e. 24.1.1971, as prescribed by sub section (6) of section 5, the transfer would have to be ignored.
Against the decision of the Prescribed Authority, the appellant filed an appeal before the District Judge being the Appellate Authority, and assailed the finding of the Prescribed Authority.
The District Judge, after hearing the parties, came to a clear finding that the gift was a bona fide one having regard to the circumstances in which the transfer was made and merely because it was executed after the due date (24.1.1971) it could not be held to be invalid.
Thereafter, the State of U.P. filed a writ petition in the High Court which was allowed following a Division Bench decision of its Court in Fateh Mohammad vs District Judge which had held that a deed of gift not being a transfer for consideration had to be ignored under the provisions of the Act.
Hence, this appeal before us.
The finding of the District Judge that the gift was a bona fide one has not been challenged by Mr. Rana, appearing for the respondent, who however argued that the said gift itself was not covered by the Explanations laid down in the proviso to the said sub section (6) of section 5 of the Act.
Thus the only question for determination in the instant case is the legal effect of the prohibition contained in sub section (6) and clause (b) of its proviso.
In order to 244 understand the scope and ambit of sub section (6) and its proviso, it may be necessary to extract the relevant portions of sub section (6) and Explanations concerned: "6.
In determining the ceiling area applicable to a tenure holder, any transfer of land made after the twenty fourth day of January, 1971, which but for the transfer would have been declared surplus land under this Act, shall be ignored and not taken into account: Provided that nothing in this sub section shall apply to: . . "(b) a transfer approved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for immediate or deferred benefit of the tenure holder or other members of his family.
Explanation I For the purposes of this sub section, the expression transfer of land made after the twenty fourth day of January, 1971, includes: (a) a declaration of a person as a co tenure made after the twenty fourth day of January, 1971 in a suit or proceeding irrespective of whether such suit or proceeding was pending on or was instituted after the twenty fourth day of January, 1971; (b) any admission, acknowledgement, relinquishment or declaration in favour of a person to the like effect, made in any other deed or instrument or in any other manner." "Explanation II The burden of proving that a case falls within clause (b) of the proviso shall rest with the party claiming its benefit.
" The substantive provision which is contained in sub section (6) clearly provides that any transfer after the 24th of January 1971 would have to be ignored and not taken into account in determining the surplus area.
Clause (b) of the proviso to sub section (6) (hereinafter referred to as 'clause (b) of the proviso ') however, carves out an exception to the general rule contained in sub section (6) and 245 Explanation II places the burden of proving the fact, that the case falls within the protection of clause (b) of the proviso, on the party relying on the transfer and claiming its benefit.
A careful analysis of clause (b) of the proviso would reveal that it requires the following conditions to be fulfilled before a transfer can seek its protection: (1) that the transfer must be in good faith, (2) that it must be proved to be in good faith to the satisfaction of the Prescribed Authority, (3) that it should be for adequate consideration and under an irrevocable instrument, and (4) that it should not be in the nature of a benami transaction for immediate or deferred benefit of the tenure holder or other members of his family.
It is manifest that if these conditions are satisfied and proved to the satisfaction of the Prescribed Authority then the burden which lies on the claimant under Explanation II would have been discharged and the transfer would not be ignored but would fall under the protective umbrella contained in clause (b) of the proviso.
It may be noticed that the legislature in its wisdom has neither defined the word 'transfer ' in any of the definitions of the Act nor has clarified it.
The primary object of the Act is to prevent the tenure holders from evading the Law of Ceiling by making fictitious transfers even by registered documents either before or after the due date so as to evade the provisions of the Act and thus frustrate the very object and the social purpose for which the Act had been passed.
In these circumstances, therefore, the word 'transfer ' has obviously been used by the legislature in the general sense of the term as defined in the Transfer of Property Act, which is the statute that governs all transfers of movable or immovable properties.
In other words, the word 'transfer ' being a term of well known legal significance having well ascertained incidents, the legislature did not think it necessary to define the term 'transfer ' separately.
Similarly, the word 'consideration ' also being a term commonly used to denote contracts, sales and transactions, has been used in the same sense, that is to say, as defined by section 2(d) of the Contract Act.
It is well settled that whenever the legislature uses certain terms or expressions of well known legal significance or connotation the courts must interpret them as used or understood in the popular 246 sense.
In the case of C.I.T. Andhra Pradesh vs M/s. Taj Mahal Hotel, Secundrabad this Court while laying down guidelines for holding how a particular expression has been defined, observed as follows: "Now it is well settled that where the definition of a word has not been given, it must be construed in its popular sense if it is a word of every day use.
Popular sense means "that sense which people conversant with the subject matter with which the statute is dealing, would attribute to it".
Lord Atkinson in Keats vs Lewis observed as follows: "In the construction of a statute it is, of course, at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed, and to the evils, which as appears from its provisions, it was designed to remedy.
If the words are capable of one meaning alone then it must be adopted, but if they are susceptible of wider import, we have to pay regard to what the statute or the particular piece of legislation had in view.
" These observations are fully applicable to the present Act which has for its object remedying the evil of evading the ceiling law by the large landholders by executing sale deeds or other instruments so as to escape the consequences of the law.
In Union of India vs Sankal Chand Himatlal Sheth & Anr.
Chandrachud, J., as he then was, observed as follows: "The normal rule of interpretation is that the words used by the legislature are generally a safe guide to its intention.
Lord Reid in Westminster Bank Ltd. vs Zang observed that "no principle of interpretation of statutes is more firmly settled than the rule that the Court must deduce the intention of Parliament from the words used in the Act.
" Applying such a rule, this Court observed in section Narayanaswami vs G. Panneerselvam (AIR 247 at 2290) that "where the statute 's meaning is clear and explicit, words cannot be interpolated." . . "But, if the provision is clear and explicit, it cannot be reduced to a nullity by reading into it a meaning which it does not carry." Against this background we have now to consider the real intention of the words "transfer for adequate consideration" as used in clause (b) of the proviso.
The High Court has held that although the deed of gift is a transfer but as it is a transfer without any consideration, therefore such a transfer does not fulfil one of the essential ingredients mentioned in clause (b) of the proviso, namely, that it should be for consideration.
The High Court has further held that its view is reinforced by the word 'adequate ' which qualifies the word 'consideration ' which completely rules out a transfer in the nature of a gift.
The High Court was of the view that a transfer of property by way of a gift being a purely gratuitous transfer made out of love and affection or for the spiritual benefit of the donor, falls completely beyond the ambit of clause (b) of the proviso and, therefore, has to be ignored under the provisions of the said sub section (6) of section 5 of the Act.
Mr. Kacker, appearing for the appellant, assailed the view taken by the High Court on the ground that the High Court has given a very restricted meaning to the term 'transfer for adequate consideration ' by limiting the import of the word 'consideration '.
He argued in the first place that a gift cannot be said to be a transfer without consideration because even love and affection, spiritual benefit or other factors of similar nature may provide sufficient consideration for the gift.
Secondly, it was argued that even if a gift was a transfer without consideration and was intended to be excluded by clause (b) of the proviso, then there should have been an express indication of the same in the provisions of clause (b) of the proviso by expressly excluding gifts.
Another facet of this argument advanced before us by Mr. Kacker was that as gift has not been expressly excluded by clause (b) of the proviso, we should be persuaded to hold that the conditions regarding adequate consideration would not apply to a gift as a gift, was a transfer without consideration and if other conditions were satisfied a gift would also fall within the purview of clause (b) of the proviso.
We have given our anxious consideration to the arguments put forward 248 by Mr. Kacker and although the arguments are extremely attractive yet we find ourselves unable to agree with the same.
To begin with, it may be necessary to dwell on the concept of gift as contemplated by the Transfer of Property Act and as defined in various legal dictionaries and books.
To start with, Black 's Law Dictionary (Fourth Edition) defines gift thus: "A voluntary transfer of personal property without consideration.
A parting by owner with property without pecuniary consideration.
A voluntary conveyance of land, or transfer of goods, from one person to another made gratuitously, and not upon any consideration of blood or money.
" A similar definition has been given in Webster 's Third New International Dictionary (Unabridged) where the author defines gift thus: "Something that is voluntarily transferred by one person to another without compensation; a voluntary transfer of real or personal property without any consideration or without a valuable consideration distinguished from sale.
" (Emphasis ours) Volume 18 of Words & Phrases (Permanent Edition) defines gift thus: "A 'gift ' is a voluntary transfer of property without compensation or any consideration.
A 'gift ' means a voluntary transfer of property from one person to another without consideration or compensation." (Emphasis ours) In Halsbury 's Laws of England (Third Edition Volume 18) while detailing the nature and kinds of gift, the following statement is made: "A gift inter vivos (a) may be defined shortly as the transfer of any property from one person to another gratuitously.
Gifts then, or grants, which are the eighth method of transferring personal property, are thus to be distinguished from each other, that gifts are always gratuitous, grants are upon some consideration or equivalent." 249 Thus, according to Lord Halsbury 's statement the essential distinction between a gift and a grant is that whereas a gift is absolutely gratuitous, grant is based on some consideration or equivalent.
Similarly in Volume 38 of Corpus Juris Secundum, it has been clearly stated that a gift is a transfer without consideration and in this connection while defining the nature and character of a gift the author states as follows: "A gift is commonly defined as a voluntary transfer of property by one to another, without any consideration or compensation therefor.
Any piece of property which is voluntarily transferred by one person to another without compensation or consideration.
A gift is a gratuity, and an act of generosity, and not only does not require a consideration but there can be none; if there is a consideration for the transaction it is not a gift.
" It is, therefore, clear from the statement made in this book that the concept of gift is diametrically opposed to the presence of any consideration or compensation.
A gift has aptly been described as a gratuity and an act of generosity and stress has been laid on the fact that if there is any consideration then the transaction ceases to be a gift.
Before closing this aspect of the matter we might also refer to the definition of consideration given in various books.
Black 's Law Dictionary defines 'consideration ' thus: "Consideration" is not to be confounded with motive.
Consideration means something which is of value in the eye of the law, moving from the plaintiff, either of benefit to the plaintiff or of detriment to the defendant".
" This is the view expressed in 2 Q.B. 851.
Similarly, at p.61 in the same volume, the words 'adequate consideration ' have been defined thus: "One which is equal, or reasonably proportioned, to the value of that for which it is given.
Fair and reasonable under circumstances." (Emphasis ours) Webster 's Third New International Dictionary (Unabridged) defines, consideration ' thus: "Something that is legally regarded as the equivalent or return given or suffered by one for the act or promise of another." 250 And the word 'adequate ' has been defined in the same volume at page 25 thus: "Legally sufficient: such as is lawfully and reasonably sufficient" Similarly, in words and Phrases (Permanent Edition volume 2) the word 'adequate ' has been defined at p.545 thus: 'Adequate ' means fully equal to requirements or occasions, commensurate, but in its primary and more popular significance nothing can be said to be 'adequate ' which is not equal to what is required, suitable to the case or occasion, fully sufficient, proportionate, and satisfactory." And when used to qualify consideration, it has been defined thus: in the same volume at p.545: "Fair consideration in money or money 's worth" is consideration which under all circumstances is honest, reasonable, and free from suspicion, whether or not strictly 'adequate ' or 'full '." (Emphasis supplied) 'Adequate Consideration ' has been further defined as follows in the same volume at p.553: "Adequate consideration" generally is one which is a fair equivalent in value for benefit obtained. . . 'Adequate consideration ' required in action for specific performance merely means that contract price must be substantially just and fair valuation under all circumstances." (Emphasis supplied) In Volume 17 of Corpus Juris Secundum (p.420 421 and 425) the import of 'consideration ' has been described thus: "Various definitions of consideration are to be found in the textbooks and judicial opinions.
A sufficient one, as 251 stated in Corpus Juris and which has been quoted and cited with approval is, "a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. . .
At common law every contract not under seal requires a consideration to support it, that is, as shown in the definition above, some benefit to the promisor, or some detriment to the promisee. . . .
There is a sufficient consideration for a promise if there is any benefit to the promisor or any detriment to the promisee. .
It may be laid down as a general rule, in accordance with the definition given above, that there is a sufficient consideration for a promise if there is any benefit to the promisor or any loss or detriment to the promisee.
" The gist of the term 'consideration ' and its legal significance has been clearly summed up in section 2(d) of the Contract Act which defines 'consideration ' thus: "When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstrains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.
" From a conspectus, therefore, of the definitions contained in the dictionaries and the books regarding a gift or an adequate consideration, the inescapable conclusion that follows is that 'consideration ' means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee.
Similarly, when the word 'consideration ' is qualified by the word 'adequate ', it makes consideration stronger so as to make it sufficient and valuable having regard to the facts, circumstances and necessities of the case.
It has also been seen from the discussions of the various authorities mentioned above that a gift is undoubtedly a transfer which does not contain any element of consideration in any shape or form.
In fact, where there is any equivalent or benefit measured in terms of money in respect of a gift the transaction ceases to be a gift and assumes a different colour.
It has been rightly pointed out in one of the books referred to above that we should not try to confuse the motive or the purpose of making a gift with the consideration which is the subject matter of the gift.
Love, affection, spiritual benefit and many other 252 factors may enter in the intention of the donor to make a gift but these filial considerations cannot be called or held to be legal considerations as understood by law.
It is manifest, therefore, that the passing of monetary consideration is completely foreign to the concept of a gift having regard to the nature, character and the circumstances under which such a transfer takes place.
Furthermore, when the legislature has used the word 'transfer ' it at once invokes the provisions of the Transfer of Property Act.
Under section 122 of the Transfer of Property Act, gift is defined thus: " 'Gift ' is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
" Thus, section 122 of the Transfer of Property Act clearly postulates that a gift must have two essential characteristics (1) that it must be made voluntarily, and (2) that it should be without consideration.
This is apart from the other ingredients like acceptance, etc.
Against the background of these facts and the undisputed position of law, the words, 'transfer for adequate consideration ' used in clause (b) of the proviso clearly and expressly exclude a transaction which is in the nature of a gift and which is without consideration.
Love and affection, etc., may be motive for making a gift but is not a consideration in the legal sense of the term.
As regards the argument of Mr. Kacker that if the legislature intended to exclude gifts, clause (b) of the proviso should have expressly said so; the answer is very simple.
Every legislature has its own technical or legal device to express its intendment.
Some legislatures may have chosen to expressly exclude gift as Mr. Kacker says but that is not the only method of conveying the legislative intent.
There may be other methods or devices by which the legislative intent can be expressed, namely, by using such expressions which would expressly or by necessary intendment exclude a particular transaction.
This method seems to have been adopted by the legislature in enacting clause (b) of the proviso.
In fact, the legislature has made its intention clear that gift is excluded by qualifying the word 'consideration ' by the adjective 'adequate '.
Assuming that love and affec 253 tion, spiritual benefit or similar other factors may amount to a consideration for the gift, the word 'adequate ' is wholly inapplicable to and inconsistent with the concept of a gift because it is impossible to measure love and affection, the sentiments or feelings of the donor by any standard yardstick or barometer.
The words 'adequate consideration ' clearly postulate that consideration must be capable of being measured in terms of money value having regard to the market price of the property, the value that it may fetch if sold, the value of similar lands situated in the vicinity, so on and so forth.
In the instant case, therefore, in our opinion, the legislature by using the word 'adequate ' to qualify the word 'consideration ' has completely ruled out and excluded gift from the ambit of clause (b) of the proviso.
In these circumstances, therefore, the argument of Mr. Kacker that by not expressly excluding gift, clause (b) of the proviso includes gift cannot be accepted particularly in the face of the clear and unambiguous language used by clause (b) of the proviso in describing the nature of the transaction as one for adequate consideration.
We now deal with the second limb of the argument of Mr. Kacker that as in the case of a gift there is no question of a consideration, we should hold that the 3rd part of clause (b) of the proviso which contains the words 'for adequate consideration ' is inapplicable and ignore the same.
This argument is diametrically opposed to the well known rule of interpretation that courts in interpreting statutes must not interpolate or legislate.
It is well settled that a legislature does not waste words without any intention, and every word that is used by the legislature must be given its due import and significance.
In the instant case, the words 'adequate consideration ' have undoubtedly a well recognised concept and, as indicated above, the intention was to exclude any transaction which is not for adequate consideration.
Not to speak of a gift but even if a sale is found to be bona fide but the consideration is inadequate, for instance, where the property has been sold for a nominal price or below the market value, the transaction would fall beyond the protection given by clause (b) of the proviso.
Our attention has been drawn by Mr. Kacker to a single Bench decision by Banerji, J, in Fateh Singh vs State of Uttar Pradesh & Ors where the learned Judge had taken the view that the definition of a transfer given in clause (b) of the proviso included a gift because a gift also could not be said to be a transfer without consideration even though 254 consideration may not be weighed in terms of money.
The learned Judge in taking this view had obviously fallen into error of confusing what was the motive or the reason for the gift as being a legal consideration of it.
It has already been pointed out that in considering the nature of a gift one should not confuse the motive, which may be love and affection, or spiritual benefit, with valuable consideration which has to be either in the shape of a money compensation or equivalent of the same.
It is true that in every gift the donor has a particular motive and objective or a reason to part with his property in favour of the donee, the reason being, in some cases, love and affection where the gift is in favour of a relation or friend, or spiritual benefit in other cases but this will be the immediate motive for making the gift and cannot be regarded as a consideration for the gift because the very concept of gift is based on a purely gratuitous consideration.
The Division Bench of the Allahabad High Court in the case referred to above has rightly overruled the view of Banerji, J,, on this count.
In fact the matter has been considered by other High Courts who have consistently taken the view that a gift is a transfer without consideration, love and affection being only the motive for making the transfer.
In Debi Saran Koiri & Anr.
vs Nandalal Chaubey and Ors.
while elucidating the nature and character of a gift Sahay, J. made the following observations: "Now, section 122, T.P. Act defines "gift" as a transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee." "To my mind consideration in section 122, T.P. Act, means valuable consideration and not consideration in the shape of conferring spiritual benefit to the donor.
If valuable consideration be not the consideration referred to in section 122, I fail to understand how any gift can be made without consideration at all.
There must be some sort of consideration in every gift, for instance, a consideration of an expectation of spiritual or moral benefit or consideration of love and affection.
Such considerations are not considerations contemplated in section 122.
The consideration there contemplated must be valuable consideration, that is consideration either of money of money 's worth".
(Emphasis supplied) 255 In Kulasekaraperumal vs Pathakutty Thalevanar & Ors.
Jagadisan, J. made the classic observations which may be extracted thus: "A gift is essentially a gratuitous transfer.
Complete absence of consideration marks the transfer as a gift and differentiates it from a grant.
" The learned Judge has rightly pointed out that complete absence of consideration is the main hallmark which distinguishes a gift from a grant or for that matter other transactions which may be for valuable or adequate consideration.
We find ourselves in complete agreement with the observations made by Jagdisan, J. in Kulasekaraperumal 's case (supra) and Sahay, J. in Debi Saran 's case (supra) which correctly represent the character and nature of the gift as contemplated by law.
Banerji, J. in Fateh Singh 's case (supra) seems to have relied heavily on Explanation I of sub section (6) of section (5) of the Act which refers to a declaration of a tenure holder made in a suit or any admission, acknowledgement, relinquishment, etc., made in any other deed or instrument in order to reinforce his conclusion that clause (b) of the proviso did not exclude a gift.
With due respect, here the learned Judge completely failed to appreciate the scope of clause (b) of the proviso and Explanation I.
It is well settled that an Explanation merely widens the scope of the main section and is not meant to carve out a particular exception to the contents of the main section.
Thus, even if the words 'relinquishment, admission or declaration ' are used in Explanation I. the use of such words do not absolve the party concerned from proving the essential ingredients laid down in clause (b) of the proviso, namely, that the transfer should be executed in good faith and should be for adequate consideration.
Whatever be the nature of the declaration, acknowledgement, relinquishment, adequacy of consideration has to be proved in any case.
Thus, in our view, the Division Bench was fully justified in overruling the view of Banerji, J. in regard to the interpretation of the Explanation also.
Finally, we would like to mention that the matter is no longer res integra but is fully covered in principle by a decision of this Court in Tulsidas Kilachand vs The Commissioner of Income tax, Bombay City 1, where Hidayatullah J, speaking for the Court observed as follows: "It remains to consider whether there was a adequate consideration for the transfer.
Reliance has been placed 256 only upon love and affection.
The words "adequate consideration" denote consideration other than mere love and affection which, in the case of a wife, may be presumed.
When the law insists that there should be "adequate consideration" and not "good consideration", it excludes mere love and affection.
They may be good consideration to support a contract, but adequate consideration to avoid tax is quite a different thing.
To insist on the other meaning is really to say that consideration must only be looked for, when love and affection cease to exist." (Emphasis supplied) It would thus, appear that this Court clearly held that the words 'adequate consideration ' completely exclude the concept of love and affection and this decision appears to be on all fours with the facts of the present case.
Realising this predicament Mr. Kacker submitted that the words 'adequate consideration ' used in the Income Tax Act denote a different texture.
Mr. Kacker argued that it is not permissible to interpret or use an expression in one Act as having the same meaning in another Act which is of a different kind.
Of course, there can be no dispute with this proposition but then the Act as also the Income Tax Act have both used the words 'adequate consideration ' which, as we have already held, are terms of well known legal significance having a well recognised popular sense and hence they would convey the same meaning and import whenever used in other statutes unless a contrary intention appears from the language employed by the legislature in the statute.
Moreover, the object of the Income Tax Act as also the present Act seems to be more or less identical.
Whereas the object of the Income Tax Act in enacting section 16(3)(b) which is extracted below, is to circumvent and prevent a growing tendency on the part of the assessees to avoid or reduce tax liability by means of settlements: "16(3). (a) (b) so much of the income of any person or association of persons as arises from assets transferred otherwise than for adequate consideration to the person or association by such individual for the benefit of his wife or a minor child or both.
" 257 In the instant case also the avowed object of sub section (6) of section 5 of the Act is to prevent the large landholders from evading the ceiling law by executing transfers, instruments or gifts so as to reduce their surplus area.
Where the two statutes have a common and identical object then the legal terms used in one statute must be given the same meaning in the other.
It cannot be said that the words 'adequate consideration ' appearing in sub section (6) of section 5 of the Act do not take their colour from the context but are in conformity with the main object of the Act, to prevent evasion of the ceiling law by large tenure holders in anticipation of the passing of the Ceiling Law.
For these reasons, therefore, the argument of Mr. Kacker on this score must be rejected.
We, therefore, hold that in view of the interpretation placed by this Court on the words 'adequate consideration ' which fully applies to the present case and to the same language employed in sub section (6) of section 5 of the Act, a gift is not only impliedly but expressly excluded by the Act.
In the Division Bench decision of the Allahabad High Court referred to above, after a consideration of a large number of authorities the following observations were made: "The Legislature while enacting the U.P. Imposition of Ceiling on Land Holdings Act, was alive to the provisions of the Transfer of Property Act dealing with the transfer of immovable property.
the terms 'transfer ', sale, 'mortgage ' and 'lease ' have not been defined in the Act.
Therefore, these terms must have been used only in the sense in which they have been used in Transfer of Property Act.
If the Legislature intended to use those terms in a different sense and with a different connotation, it would have defined those terms in the Act.
But that has not been done.
The legislature, however, thought that there may be genuine and bona fide transfers for consideration.
To protect such tenure holders and other transfers, proviso (b) to sub section (6) of section 5 of the Act was enacted.
It saved transfers for adequate consideration.
Gift is a gratuitous transfer and there is no consideration which obviously means valuable consideration.
If transfer for love and affection is taken to be a transfer for consideration then the purpose of the Act would be 258 completely defeated as the tenure holders would transfer their land by gift after 24th January 1971.
" We fully endorse the observations made by the Division Bench which lay down the correct law on the subject and we overrule the decision of Banerji, J. in Fateh Singh 's case (supra).
Lastly, it was urged by Mr. Kacker that this is an extremely hard case where the grand father of the donee wanted to make a beneficial provision for his grand daughter after having lost his two sons in the prime of their life due to air crash accidents while serving in the Air Force.
It is true that the District Judge has come to a clear finding that the gift in question is bona fide and has been executed in good faith but as the gift does not fulfil the other ingredients of the section, namely, that it is not for adequate consideration, we are afraid, however laudable the object of the donor may have been, the gift has to fail because the genuine attempt of the donor to benefit his granddaughter seems to have been thwarted by the intervention of sub section (6) of section 5 of the Act.
This is undoubtedly a serious hardship but it cannot be helped.
We must remember that the Act is a valuable piece of social legislation with the avowed object of ensuring equitable distribution of the land by taking away land from large tenure holders and distributing the same among landless tenants or using the same for public utility schemes which is in the larger interest of the community at large.
The Act seems to implement one of the most important constitutional directives contained in Part IV of the Constitution of India.
If in this process a few individuals suffer severe hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr.
As this was the only point raised before us, we find no merit in the same.
For the reasons given above, we hold that the High Court was right in allowing the writ petition in respect of the gift in question.
The appeal fails and is accordingly dismissed but without any order as to costs.
P.B.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
Sub section 6 of section 5 of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 as it stood at the relevant time provided that in determining the ceiling area any transfer of land made after January, 24, 1971 should be ignored and not taken into account.
Clause (b) of the proviso to sub section 6 which carves out an exception states that the sub section shall not apply to a transfer proved to the satisfaction of the Prescribed Authority to be in good faith and for adequate consideration under an irrevocable instrument.
Explanation II to this proviso places the burden of proof that a case fell within clause (b) of the proviso is on the party claiming its benefit.
On January 28, 1972 the donor gifted away certain lands in favour of his grand daughter, the appellant, daughter of a pre deceased son.
The gift having been made after the prescribed date, the Prescribed Authority ignored the gift for purposes of section 5 (6) of the Act.
On appeal, the District Judge gave a finding in favour of the appellant holding that the gift was bona fide having regard to the circumstances in which it was made and that it could not be held invalid merely because it was executed after the due date of January 24, 1971.
Purporting to follow one of its earlier decisions, the High Court held that a gift not being a transfer for consideration, had to be ignored under the provisions of the Act and that a gift being a gratuitous transfer made out of love and affection fell outside the purview of clause (b) of the proviso.
On behalf of the appellant it was contended that a gift could not be said to be a transfer without consideration because even love and affection may 240 provide sufficient consideration and hence the condition regarding adequate consideration would not apply to a gift.
Dismissing the appeal ^ HELD: It is a well settled rule of construction of statutes that where the definition of a word has not been given in an enactment it must be construed in its popular sense if it is a word of every day use, that is, the sense in which people conversant with the subject matter with which it deals would attribute to it.
Similarly if the language used is clear and explicit, the provision cannot be reduced to a nullity by reading into it a meaning which it does not carry.
[246B] In the instant case therefore, the word "transfer" being a term of well known legal significance with well ascertained incidents the legislature did not consider it necessary to define it separately.
It is used in the sense in which it is used in the Transfer of Property Act.
[245 G] C.I.T., Andhra Pradesh vs M/s. Taj Mahal Hotel, Secunderabad and Union of India vs Sankal Chand Himatlal Sheth and Anr. ; applied.
Keats vs Lewis referred to.
A conspectus of the meaning of the term "gift" is that it is a transfer which does not contain an element of consideration in any shape or form.
Where in respect of a gift there is a benefit measurable in terms of money the transaction ceases to be a gift and assumes a different colour.
Yet another salient feature of a gift is that love, affection and many other factors may constitute the motive for the gift and may enter into the intention of the donor making a gift, but none of these can be held to be legal consideration, as understood by law.
[251 G H; 252F] "Consideration" means a reasonable equivalent or other valuable benefit passed on by the promisor to the promisee or by the transferor to the transferee.
When the term consideration is qualified by the word "adequate" it makes it sufficient and valuable having regard to the facts, circumstances and necessities of the case.
[251 F] The word "transfer for adequate consideration" used in clause (b) of the proviso excludes a transaction, which is in the nature of a gift and which is without consideration.
[252 E] The argument that if the legislature intended to exclude gifts clause (b) of the proviso would have expressly said so and by not excluding it must be deemed to have included a gift is without force particularly in the face of the clear and unambiguous language of the proviso.
Every legislature has its own technical device to express its intendment.
Express exclusion is not the only method of conveying the legislative intent there may be other methods or devices by which a legislature expresses its intent; namely, by using expressions, which would exclude a particular transaction by necessary intendment.
This is what is done in enacting clause (b) of the proviso.
[252 G H] 241 The legislature has made its intention clear that a gift is excluded by qualifying the word "consideration" with the adjective "adequate".
[252 H] By using the word "adequate" to qualify the word "consideration" the legislature has ruled out gifts from the ambit of clause (b) of the proviso.
[253 C] The words "adequate consideration" clearly postulate that consideration must be capable of being measured in terms of money, having regard to the market price of the property, the value that it may fetch if sold, the value of similar lands situate in the vicinity and so on.
[253 B] The argument that since in the case of a gift there is no question of consideration, the words for "adequate consideration" in the 3rd part of clause (b) of the proviso are inapplicable and should, therefore, be ignored is opposed to the well known rule of interpretation that Courts, while interpreting statutes, must not legislate.
A legislature does not use words without any intention and every word used by the legislature must be given its due import.
The intention of the legislature in using the words "adequate consideration" is to exclude any transaction which is not for adequate consideration.
Even if a sale is bona fide if to but consideration is inadequate, the transaction would fall beyond the protection of clause (b) of the proviso.
[253 E F] Debi Saran Koiri and Anr.
vs Nandlal Chaubey and Ors.
A.I.R. 1929 Patna 591 and Kulasekaraperumal vs Pathakutty Thalevanar and Ors.
A.I.R. 1961 Madras 405 approved, The words "adequate consideration" carry a well known legal significance and, therefore, convey the same meaning and import in whichever statute they are used unless a contrary intention appears from the language employed by the legislature in a particular Act.
[256 E F] Tulsidas Kilachand vs The Commissioner of Income tax Bombay City I, ; , referred to Fateh Mohammed vs District Judge [Civil Writ Petition No. 915 of 1975, decided on 10 7 78] overruled.
An explanation merely widens the scope of the main section and is not meant to carve out a particular exception to the main section.
The words admission, acknowledgment, relinquishment or declaration used in Explanation I, do not absolve the party concerned from proving that the transfer should be executed in good faith and for adequate consideration.
[256 E F] However laudable the object of the donor in gifting the property to his grand daughter (particularly in the circumstances of this case) may be and whatever hardship might ensue to the donee by applying the provision, the gift fails if it does not fulfil the other essential requirements of the section.
The act was enacted to implement one of the Directives contained in Part IV of the Constitution and if in this process a few individuals suffer that cannot be helped, for, individual interests must yield to the larger interests of the community.
[258 D F] 242


judgement:
Civil Appeal No. 151 of 1981.
Appeal by Special Leave from the Judgment and Order dated 16.8.1969 of the Addl.
Judge (Revisions) Sales Tax, Saharanpur in Revision Appln.
No. 1688/78.
J. Ramamurthi and Miss R. Vaigai for the Appellant.
section C. Manchanda.
B. P. Maheshwari and Suresh Sethi for the Respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
This appeal by special leave raises the question whether hypodermic clinical syringes could be regarded as "glass ware" under Entry No. 39 of the First Schedule to U.P. Sales Tax Act, 1948 ? The facts giving rise to the question lie in a narrow compass.
The appellant firm (hereinafter called the assessee) manufactures and sells hypodermic clinical syringes.
For the assessment year 1973 74 the assessee filed a return disclosing net U.P. sales of such syringes at Rs. 95,065.
The disclosed turnover was accepted by the 296 Sales Tax Officer, Sector III Muzaffarnagar, but as regards the rate of tax the assessee contended that the clinical syringes in respect of their turnover of Rs.91,513 up to November 30, 1973 should be regarded as an unclassified item and taxed at the rate of 3 1/2% or at 4% as "hospital equipment and apparatus" under Entry 44 of the First Schedule to the Act and on the turnover of Rs. 3,552/ for the period from December 1, 1973 to March 31, 1974 at the rate of 7% as an unclassified item.
The Sales Tax Officer, however, treated the syringes as "glass ware" and taxed the entire turnover of Rs.95,065/ at the rate of 10% under Entry No. 39 of the First Schedule.
The said assessment was upheld in appeal by the Assistant Commissioner (Judicial), Sales Tax, Muzaffarnagar and also in revision by the Additional Judge (Revision), Sales Tax, Saharanpur on August 16, 1979.
It is this view taken by the assessing authorities as well as by the Additional Judge in revision that is being challenged by the assessee before us in this appeal.
It may be stated that up to November 30, 1973 there were two competing entries in the First Schedule to the U.P. Sales Tax Act so far as the item in question is concerned, namely, Entry 39 which ran: "Glass wares other than hurricane lantern chimneys, optical lenses and bottles" and Entry 44 which ran: "Hospital equipment and apparatus" and for an item falling under the former the rate of tax was 10% while under the latter the rate of tax was 4% and for an unclassified item the rate was 3 1/2%.
From December 1, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes did not fall within Entry 39 it became an unclassified item under section 3A (2A) of the Act and the rate of tax was 7%.
In view of this position that obtained for the relevant periods during the assessment year 1973 74 the assessee had claimed before the assessing authorities that its turnover in respect of syringes for the period up to November 30, 1973 was liable to tax at 3 1/2% as an unclassified item or in the alternative at 4% as "hospital equipment" under Entry 44 and its turnover for the period from December 1, 1973 to March 31, 1974 was liable to be taxed at 7% as an unclassified item.
But, negativing its contentions the entire turnover was held to be taxable at the rate of 10% on the basis that clinical syringes fell within the expression "glass ware" occurring in Entry 39.
Counsel for the assessee contended before us that in the absence of any definition of "glass ware" in the Act that expression must be understood in the ordinary commercial parlance and not in any scientific and technical sense and if such test were applied to the instant case then clinical syringes manufactured and sold by the 297 assessee could never be regarded as "glass ware".
Counsel pointed out that the Revising Authority negatived the contention of the assessee in view of a decision of the Allahabad High Court in the case of Commissioner of Sales Tax vs section section R. Syringes and Thermometers but urged that the contrary view taken by the Orissa High Court in the case of State of Orissa vs Janta Medical Stores that thermometers, lactometers, syringes, eye glasses, etc.
do not come within the meaning of the expression "glass ware" in Entry No. 38 in the Schedule to the relevant Notification issued under the first proviso to section 5(1) of the Orissa Sales Tax Act, 1947 was correct.
In our view counsel 's contention has considerable force and deserves acceptance.
It is well settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them.
If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted.
In Ramavatar Budhiaprasad, etc.
vs Assistant Sales Tax Officer, Akola the question was whether 'betel leaves ' fell within item 'vegetable ' so as to earn exemption from sales tax and this Court held that word 'vegetable ' had not been defined in the Act, and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed it denoted those classes of vegetable matter which are grown in kitchen garden and are used for the table and did not comprise betel leaves within it and, therefore, betel leaves were not exempt from taxation: In Commissioner of Sales Tax, Madhya Pradesh vs Jaswant Singh Charan Singh the question was whether the item 'coal ' under Entry 1 of Part III of Second Schedule to Madhya Pradesh General Sales Tax Act, 1958 included charcoal or not and this Court observed thus: "Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manu 298 factured by human agency from products like wood and other things.
But it is now well settled that while interpreting items in statutes like the Sales Tax Acts, resort should be had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense.
" Viewing the question from the above angle this Court further observed that both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include 'charcoal ' in the term "coal", and held that 'charcoal ' fell within the concerned Entry No. 1 of Part III of Schedule II of the Act.
Having regard to the aforesaid well settled test the question is whether clinical syringes could be regarded as "glass ware" falling within Entry 39 of the First Schedule to the Act ? It is true that the dictionary meaning of the expression "glass ware" is "articles made of glass" (See: Websters New World Dictionary).
However, in commercial sense glass ware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility.
In popular or commercial parlance a general merchant dealing in "glass ware" does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc.
which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee.
It is equally unlikely that consumer would ask for such articles from a glass ware shop.
In popular sense when one talks of glass ware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to one 's mind.
Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as "glass ware" falling within Entry 39 of the First Schedule of the Act.
In our opinion, the view taken by the Orissa High Court in State of Orissa vs Janta Medical Stores (supra) is correct and the view of the Allahabad High Court in Commissioner of Sales Tax vs M/s S.S.R. Syringes and Thermometers (supra) is unsustainable.
In this view of the matter it is clear that the assessee 's turnover up to November 30, 1973 will fall under Entry 44 dealing with 299 "hospital equipment" and the same would be taxable at the rate of 4% and its turnover from December 1, 1973 to March 31, 1974 will be taxable at the rate 7% as an unclassified item and the assessment will have to be made accordingly.
In the result the appeal is allowed but there will be no order as to costs.
section R. Appeal allowed.

summary:
Upto November 30, 1973, there were two competing entries in the First Schedule to the U. P. Sales Tax Act, 1948, so far as the item "hypodermic clinical syringes" is concerned, namely, Entry 39 which ran: "Glass wares other than hurricane lantern chimneys, optical lenses and bottles" and Entry 44 which ran: "Hospital equipment and apparatus" and for an item falling under the former the rate of tax was 10% while under the latter the rate of tax was 4% and for an unclassified item the rate was 3 1/2% From December 1, 1973 onwards Entry 44 was deleted and, therefore, if the clinical syringes did not fall within entry 39 it became an unclassified item under section 3A(2A) of the U.P. Sales Tax Act, 1948 and the rate of tax was 7%.
In view of this position that obtained for the relevant periods during the assessment year 1973 74 the appellant assessee had claimed before the assessing authorities that its turnover in respect of syringes for the period up to November 30, 1973 was liable to tax at 3 1/2%, as an unclassified item or in the alternative at 4% as "hospital equipment" under Entry 44 and its turnover for the period from December 1, 1973 to March 31, 1974 was liable to be taxed at 7% as an unclassified item.
But, negativing its contentions the entire turnover was held to be taxable at the rate of 10% on the basis that clinical syringes fell within the expression "glass ware" occurring in Entry 39 and hence the appeal by special leave on the question whether hypodermic clinical syringes could be regarded as glass ware.
Allowing the appeal, the Court ^ HELD: 1.
The assessee 's turnover up to November 30, 1973 will fall under Entry 44 dealing with "hospital equipment" and the same would be taxable at the rate of 4% and its turnover from December 1, 1974 will be taxable at the rate of 7% as an unclassified item.
[298 H] 2: 1.
It is well settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances resort should be had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by those dealing in them.
If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined 295 but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted.
[297 C D] Ramavatar Budhiaprasad etc.
vs Assistant Sales Tax Officer, Akola, and Commissioner of Sales Tax, Madhya Pradesh vs Jaswant Singh Charan Singh, ; , followed.
2 : 2.
The clinical syringes which the assessee manufactures and sells cannot be considered as "glass ware" falling within Entry 39 of the First Schedule of the Act.
(a) In commercial sense, glass ware would never comprise articles like clinical syringes, thermometers, lactometers, and the like which have specialised significance and utility: (b) in popular or commercial parlance a general merchant dealing in "glass ware" does not ordinarily deal in articles like clinical syringes, thermometers etc.
which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee; (c) it is equally unlikely that consumer would ask for such articles from a glass ware shop.
Further in popular sense when one talks of glass ware such specialised articles like clinical syringes do not come up to one 's mind.
[298 E F] State of Orissa vs Janta Medical Stores, 37 STC 33, approved.
Commissioner of Sales Tax vs S.S.R. Syringes and Thermometers, 1973 Law Diary 178, overruled.


judgement:
N: Criminal Appeal No. 281 of 1978.
Appeal by Special Leave from the Judgment and Order dated 4.11.77 of the Allahabad High Court at Allahabad in Criminal Appeal No. 1495 of 1977.
L. N. Gupta for the Appellants.
H. R. Bhardwaj and R. K. Bhatt for the Respondent.
O. P. Rana for the Complainant.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
This is yet another case in which a young housewife has been done to death by a trusted servant of the family.
Her three year old son was murdered along with her and her five year old son was seriously injured.
The incident occurred on May 6, 1971 at about 2.00 p.m. in House No. F 4/3, Kanoria Colony Quarters, Renukoot, where one Mohan Lal Khetan used to live with his wife Geeta and two sons Anil and Sunil aged three and five years respectively.
Mohan Lal left for Allahabad for some work on the morning of the 6th.
His wife and children took their food at about 1.00 p.m. and while they were resting, with a cooler on, they were assaulted as a result of which Geeta and Anil died and Sunil received serious injuries.
The only other person who was then present in the house was the appellant, who was working as a household servant for a few years before the incident.
His presence in the house at the material time is beyond the pale of controversy and indeed his very defence is that some intruders entered the house and caused injuries to Geeta, her two sons and to he himself.
The appellant received quite some injuries in the incident which led to the death of Geeta and Anil.
Sunil, the five year old son of Geeta, was examined by the prosecution as the sole eye witness in the case and his evidence has been accepted by the Sessions Court and the High Court.
Shri L. N. Gupta, who has argued the case on behalf of the appellant with admirable precision and brevity, contends that no reliance should be placed on Sunil 's evidence because he is a young child of immature understanding, that no oath was administered to him by reason of his lack of understanding of the sanctity of oath, that he did not implicate the appellant for two days or so at least and that his 262 statement was recorded by the police about 20 days after the incident.
Counsel further argues that in the very nature of things, it would be impossible for a young lad of 13 like the appellant to overpower, gag, assault and slay a well built woman of 30 that Geeta was.
The motive of the offence, according the Courts below, was to outrage the modesty of Geeta.
It is urged that a boy of 13 could not possibly have entertained any such lewd thoughts.
According to medical evidence, the injuries on the person of Geeta and the appellant were partly caused by a blunt weapon and partly by a sharp edged weapon.
That means that two different kinds of weapons were used against both of them and, what is more important, the same two weapons.
According to counsel, that is more consistent with a stranger or strangers attacking Geeta and the appellant than with the appellant attacking Geeta.
The appellant could not have attacked Geeta with two different weapons and even if Geeta were to retaliate, she could not have caused injuries to the appellant with the same two weapons.
The final submission is that the prosecution case is rendered suspicious because the evidence of discovery of the iron rod, the knife, two gold bangles and the cash at the instance of the appellant has been disbelieved by the Sessions Court and the High Court.
We have given our anxious consideration to these weighty considerations but on a close scrutiny of the evidence and the circumstances of the case we find ourselves unable to differ from the Courts below in regard to the assessment of the evidence in the case.
Counsel is not right in saying that the appellant was only thirteen years of age in May 1971.
It appears that the appellant gave his age as 13 during the committal proceedings but the age so given cannot be accepted as correct merely because, as counsel contends, the prosecution did not dispute the correctness of the assertion made by the appellant.
There was no assertion in regard to the appellant 's age and indeed it was not put in issue at any stage of the proceedings.
The point regarding the appellant 's age is being raised for the first time in this Court in the form and context in which it is raised by Shri Gupta.
The reference to the "tender age" of the appellant was made in the Sessions Court on the question of sentence and not that of guilt, nor indeed in the context that the nature of the offence is such that the appellant could not have committed it, being just a boy of 13 or so.
It is not a matter of uncommon experience that the age of an accused is mentioned in the committal proceedings without proper inquiry or scrutiny since, in most cases, nothing turns on it.
In fact if the appellant 263 was only 13 years of age at the time of the offence, the Sessions Court would not have failed to notice that fact and it would be amazing that the appellant 's advocates in the Courts below should not advert to it, though the minutest contentions were raised in arguments and subtle suggestions were made to prosecution witnesses in their cross examination.
During the trial, the appellant was suspected to be of a deranged mind and was for that reason sent to the mental hospital at Varanasi.
Exhibit K 20, which is the abstract of medical history maintained in that hospital, shows that at the time of the appellant 's admission to the hospital on July 19, 1973 he was 23 years of age.
The occurrence having taken place in May 1971, the appellant would be about 21 years of age at the relevant time.
That is what the High Court has found while dealing with the question of sentence when it was urged before it that the death sentence should not be confirmed since the appellant was just 14 or 15 years of age on the date of offence.
We concur in view of the High Court on the question of the appellant 's age and agree with it that the age given by the appellant in the committal Court and the Sessions Court was a random statement not based on any reliable data.
We cannot accept that an able bodied boy of eighteen or nineteen could not have committed an assault of the present nature for the motive alleged.
But we might mention that we are not in entire agreement with the Sessions Court and the High Court that the motive of the offender was necessarily to outrage the modesty of Geeta.
It is not possible to record a positive finding that the motive necessarily was to commit theft or robbery, but the nature of injuries on the person of Geeta does not fully bear out the inference that the motive of the outrage was concerned with sex.
There was no injury at all on Geeta 's private parts or anywhere nearabout, not even a scratch or an abrasion.
Most of the injuries were caused to her on the face and head.
It seems to us more probable that Geeta woke up while the almirah was being ransacked and she paid the price of her courage.
She resisted the robbery and was therefore done to death.
Shri Gupta made a very plausible case against the acceptance of the evidence of Sunil, the child witness.
We must confess that if the case were to rest solely on Sunil 's uncorroborated testimony, we might have found it difficult to sustain the appellant 's conviction.
But there are unimpeachable and the most eloquent matters on the 264 record which lend an unfailing assurance that Sunil is a witness of truth, not a witness of imagination as most children of that age generally are.
As we have stated earlier, the presence of the appellant is undisputed and is indeed indisputable.
The appellant himself received quite a large number of injuries during the incident, which proves his presence in the house at the relevant time beyond the shadow of a doubt.
If the appellant was present in the house at the time when Geeta was assaulted, it becomes necessary to examine his conduct without shifting the burden of proof on to him.
If the mistress of the house was killed by robbers, we should have thought that the appellant would raise a hue and cry at least after the robbers had made good their escape.
He did nothing of the kind and a little while later, he quitely walked to a neighbour and trotted out the story that a few "Badmashes" intruded into the house and killed Geeta and her son.
Not only does the conduct of the appellant corroborate the evidence of Sunil, but the very pattern of the crime corroborates that it is the appellant who committed it.
Anil was sleeping alongside his mother and he seems to have received an injury while the mother was assaulted.
But Sunil was assaulted obviously in order that he should not be left alive to identify the culprit.
The culprit whom Sunil could easily identify was the appellant who was a household servant engaged mainly to look after the two boys.
Total strangers, whom even the appellant could not identify except as "Badmashes", would have no reason whatever to assault Sunil.
The most important of the circumstances which corroborates the evidence of Sunil is the nature of injuries which were found on the person of the appellant.
Those injuries are typically of the kind which a woman in distress would cause while defending herself.
There is a trail of scratches and abrasions on the front portion of the appellant 's body and it is not without significance, as contended by Shri Bhardwaj who appears on behalf of the State of U.P., that the injuries on Geeta are also all on the front portion of her body.
A 'Badmash ' would not deal with the appellant with his nails, if indeed he wanted to put the appellant out of harm 's way.
There is one more argument which requires to be dealt with, namely, that two different weapons and the same two weapons were used against both Geeta and the appellant.
We are not quite sure whether Geeta had received an incised injury because, the injuries which were found on her forehead can give the appearance 265 of incised injuries, if caused by an iron rod.
The skin just above a hard surface can break by a severe blow and give the appearance of an incised injury.
But even assuming that the same two weapons were used on Geeta as also the appellant, it does not militate against the commission of the crime by the appellant himself.
It is clear from the evidence of Dr. Guha and Dr. Sharma that all the injuries on the person of both Geeta and the appellant were on the front portions of their respective bodies.
It is also clear that the injury which resulted in the death of Geeta as also her son Anil was caused by the iron rod.
We are inclined to the view that the weapons with which Geeta was defending herself at different stages of her life saving fight with the appellant were snatched by the appellant and he hit her with those weapons.
That is how similar injuries were found on the person of both.
We, therefore, agree with the Sessions Court and the High Court that it is the appellant who committed the murder of Geeta and her son Anil and caused injuries to Sunil.
Crimes like the one before us cannot be looked upon with equanimity because they tend to destroy one 's faith in all that is good in life.
A starving youth was given shelter by a kindly couple.
The reward of that kindness is the murder of the woman and her child.
We cannot condemn adequately the utterly disgraceful and dastardly conduct of the appellant.
But all the same, the question as to whether the death sentence is called for has to be examined in each case with dispassionate care.
The appellant was just about 21 years of age on the date of the offence and, very probably, a sudden impulse of sex or theft made him momentarily insensible.
The evidence of Sunil shows that immediately after the crime, the appellant was found sitting in the chowk of the house crying bitterly.
Having achieved his purpose he did not even try to run away, which he could easily have done since, his injuries were not of such a nature as to incapacitate him from fleeing from an inevitable arrest.
It would also appear that though he was not insane at the time of the offence in he sense that he did not know the nature and consequences of what he was doing, still he was somewhat unhinged.
He was suspected to be insane during the trial and was kept in a mental hospital from July 19, 1973 to February 2, 1975.
He was eventually declared fit to stand his trial but the evidence of Dr. R. N. Srivastava (P.W. 13), who was in charge of the hospital and the notes (Exhibit Ka 20) of the hospital show that the appellant had 266 shown aggressive symptoms and once, he had attacked another patient.
Coupled with these considerations is the fact that the basic evidence in the case is of a child of five who answered many vital questions with a nod of the head, one way or the other.
A witness who, by reason of his immature understanding, was not administered oath and who was privileged, by reason of his years, not to make his answers in an intelligible and coherent manner is unsafe to be trusted wholesale.
We cannot also overlook, what Shri L. N. Gupta highlighted, that Sunil 's statement was recorded about 20 days later.
There is valid reason for the delay, namely, his state of mind (he was a witness to the murder of his mother and an infant brother) and the state of his body (he was gagged as a result of which his clavicle was fractured).
Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disjointed thoughts which tend to stray.
The extreme sentence cannot seek its main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life.
The learned Sessions Judge did not ask the appellant what he had to say on the question of sentence, holding that section 235 (2) of the Code of Criminal Procedure, 1973 did not, by reason of its section 484 (2) (a), apply to trials which were pending on the date when the new Code came into force.
We wish that the Sessions Court had questioned the appellant on the sentence, whether the letter of section 235(2) governed the matter or not.
That would have furnished to the Court useful data on the question of sentence which it proposed to pass.
In any case, the trial would not have been invalidated if the Court were to apply the provisions of that section which were introduced into the Code ex debito justiciae.
The learned Judge had before him a safe expedient, the benefit of which he needlessly denied to himself on technical considerations.
Finally, the appellant has been in jail for ten long years.
He has probably earned by now the right to be released, after taking into account the remissions admissible to him, were he sentenced to life imprisonment.
We suppose, though we are not confident, that some celebrity or the other must have visited the jail and large, wholesale remissions from sentence must have been doled out to the prisoners in order to commemorate the great and unusual event.
267 In the result, we confirm the order of conviction but set aside the sentence of death imposed upon the appellant and sentence him to imprisonment for life for the offence under section 302 of the Penal Code.
The sentence under section 307 will stand but the two sentences will run concurrently.
S.R. Appeal partly allowed.

summary:
The appellant, a starving youth was given shelter by a kindly couple by engaging him as a domestic servant.
The reward of that kindness was the murder of the lady of the house and her three year old son and causing serious injury to her five year old son.
The appellant was, therefore, charged and convicted under sections 302 and 307 of the Penal Code and sentenced under section 307 to imprisonment and to death under section 302.
The High Court confirmed the death sentence and hence the appeal after obtaining special leave of the Court.
Maintaining the conviction under sections 302 and 307 I.P.C. and the sentence under the latter section, but modifying the death sentence under section 302 to one of life imprisonment, the Court ^ HELD: 1.
Altering the sentence of the appellant to imprisonment for life for the offence under section 302 of the Penal Code, while maintaining the sentence under section 307 Penal Code the two sentences to run concurrently will meet the ends of justice, in the instant case, under the following circumstances: [267A B] (a) He was just about 21 years of age on the date of the offence and, very probably, a sudden impulse of sex or theft made him momentarily insensible.
(b) The evidence of Sunil shows that immediately after the crime, he was found sitting in the chowk of the house crying bitterly.(c) Having achieved his purpose, he did not even try to run away, which he could easily have done since his injuries were not of such a nature as to incapacitate him from fleeing from an inevitable arrest.
(d) Though he was not insane at the time of the offence in the sense that he did not know the nature and consequences of what he was doing, still he was somewhat unhinged.
He was kept in a mental hospital from July 19, 1973 to February 2, 1975 where he had shown aggressive symptoms and once even attacked another patient.
(e) The basic evidence in this case is of a child of five who answered many vital questions with a nod of the head, one way 260 or the other.
The extreme sentence cannot seek its main support from evidence of this kind which, even if true, is not safe enough to act upon for putting out a life.
(f) Non availability of the useful data on the question of sentence which the trial court proposed to pass due to the trial Judge 's failure to ask the appellant what he had to say on the question of sentence and (g) the appellant has been in jail for ten long years and probably would have earned by now the right to be released, after taking into account the remissions admissible to him, were he sentenced to life imprisonment.
[265 E H, 266A, C D, G] 2.
The Trial Judge had a safe expedient in section 235(2) of the Code of Criminal Procedure, 1973, which he needlessly denied to himself on technical consideration that by reason of section 484(2) (a) of the Code section 235 (2) did not apply to trials which were pending on the date when the new Code came into force.
The Trial Judge ought to have questioned the appellant on the sentence, whether the letter of section 235(2) governed the matter or not.
That would have furnished to the court useful data on the question of sentence which it proposed to pass.
In any case, the trial would not have been invalidated if the court were to apply the provisions of section 235 which were introduced into the Code, ex debito justiciae.
[266 D F] 3.
A witness who, by reason of his immature understanding was not administered oath and who was privileged, by reason of his years, not to make his answers in an intelligible and coherent manner is unsafe to be trusted whole sale.
Children, in the first place, mix up what they see with what they like to imagine to have seen and besides, a little tutoring is inevitable in their case in order to lend coherence and consistency to their disputed thoughts which tend to stray.
[266 A B, C] But, in the instant case, there are unimpeachable and the most eloquent matters on the record which lend an unfailing assurance that Sunil is a witness of truth, not a witness of imagination as most children of that age are.
[263H,264A] 4.
An assessment of the following corroborative evidence, in the instant case, clearly indicate that it was the appellant who committed the murder of Geeta and her son Anil and caused injuries to Sunil: (a) the presence of the appellant proved by quite a large number of injuries during the incident; (b) his conduct in not raising hue and cry at least after the robbers had made good their escape, if any at the time of the killing of the mistress of the house, but little while later, he quietly walked to a neighbour and trotted out the story that a few Badmashes intruded into the house and killed Geeta and her son; (c) the pattern of the crime, that is, Anil was sleeping alongside his mother receiving an injury and getting killed while the mother was assaulted and Sunil being assaulted in order that he should not be left alive to identify the culprit, whom Sunil could easily identify as he was a household servant engaged mainly to look after the two boys: (d) the nature of injuries which were found on the person of the appellant are typically of the kind which a woman in distress would cause while defending herself, and cannot be by a Badmash but would otherwise deal with him if indeed the Badmash wanted to put the appellant out of harm 's way; (e) the weapons with which Geeta was defending herself at different stages of her life saving fight with the appellant were snatched by the appellant and he hit her with those weapons, that is how similar injuries were found on the person of the deceased and the appellant by the same two weapons.
[264 A H, 265 B C] 261