judgement:
Civil Appeal No. 1576 of 1987 From the Judgment and order dated 13.1.1987 of the Punjab and Haryana High Court in R.S.A. No. 3521 of 1986 H.N. Salve, R K. Garg and N.D. Garg for the Appellants.
T.U Mehta and G.K Bansal for the Respondents.
The following Judgments of the Court were delivered RAY, J.
The defendant respondent No. 1, Ram Prakash as Karta of joint Hindu family executed on February 7, 1978 an agreement to sell the suit property bearing M.C.K. No. 238/9, in Mohalla Qanungaon at Kaithal for a consideration of Rs.21,400 and he received a sum of Rs.5,000 as earnest money.
As the respondent No. 1 refused to execute the sale deed, the defendant No. 2, Jai Bhagwan instituted a suit No 570 of 1978 in the court of Sub Judge, 1st Class, Kaithal for specific performance of the agreement to sell and in the alternative for a decree for recovery of Rs. 10,000.
In the said suit the appellant Nos 1 and 2 and the respondent No. 11 who are the sons of defendant respondent No. 1 made an application for being impleaded.
This application however, was dismissed.
Thereafter the 3 sons of defendant No. 1 as plaintiffs instituted Civil Suit No 31 of 1982 in the Court of Sub Judge, IInd Class, Kaithal for permanent injunction stating inter alia that the said property was joint Hindu Family coparcenary property of the plaintiffs and defendant No 1 that there was no legal necessity for sale of the property nor it was an act of a good management to sell the same to the defendant No. 2 without the consent of the plaintiffs and without any legal necessity.
It was, therefore, prayed that a decree for permanent injunction be passed in favour of the plaintiffs and against the defendant No 1 restraining him from selling or alienating the property to the defendant No. 2 or to any other person and also restraining defendant No. 2 from proceeding with the suit for specific performance pending in the civil court.
The defendant No. 2 Jai Bhagwan since deceased, filed a written statement stating inter alia that the defendant No 1 disclosed that the suit property was owned by him and that he was in need of money for meeting the expenses of the family including the education expenses cf the children and also for the marriage of his daughters.
It has also been pleaded that the house in question fetched a very low income from rent 630 and as such the defendant No. 1 who has been residing in Delhi, did not think it profitable to keep the house.
It has also been stated that the suit was not maintainable in law and the injunction as prayed for could not be granted.
The Trial Court after hearing the parties and considering the evidences on record held that the house property in question was the ancestral property of the Joint Hindu Mitakshara Family and the defendant No. 1 who is the father of the plaintiffs was not competent to sell the same except for legal necessity or for the benefit of the estate Since the plaintiffs ' application for impleading them as party in the suit for specific performance of contract of sale, was dismissed the filing of the present suit was the only remedy available to the plaintiffs.
The plaintiffs being coparceners having interest in the property, the suit in the present form is maintainable.
The Trial Court further held that: "It is well settled law that Karta of the joint Hindu family cannot alienate the coparcenary property without legal necessity and coparcener has right to restrain the Karta from alienating the coparcenary property if the sale is with out legal necessity and is not for the benefit of the estate.
This view of mine is supported by case titled 'Shiv Kumar vs Mool Chand ' reported in CLJ 1971 page 1027 thus, the proposed sale is without any legal necessity and is not for the benefit of the estate, therefore the suit of the plaintiff is decreed with no orders as to costs." Against this judgment and decree the defendants, the legal representatives of the deceased defendant No. 2, preferred an appeal being Civil Appeal No. 199/13 of 1984.
The lower appellate court following the decision in Jujhar Singh vs Giani Talok Singh, held that a coparcener has no right to maintain a suit for permanent injunction restraining the Manager or Karta from alienating the coparcenary property and the coparcener has the right only to challenge the alienation of coparcenary property and recover back the property after alienation has come into being.
The Court of appeal below further held: "That Ram Prakash, father of the plaintiffs and Karta of the joint coparcenary property cannot be restrained by way of injunction from alienating the coparcenary property to defendant No. 2.
In consequence, the appeal is accepted 631 and the judgment and decree of the trial court under attack A are set aside " Against this judgment and decree, the instant appeal on special leave has been preferred by the appellants i.e. the sons of the defendant respondent No. 1, the Karta of the Joint Hindu Family.
In this appeal we are called upon to decide the only question whether a suit for permanent injunction restraining the Karta of the joint Hindu family from alienating the house property belonging to the joint Hindu family in pursuance of the agreement to sell executed already in favour of the predecessor of the appellants, Jai Bhagwan, since deceased, is maintainable.
It is well settled that in a Joint Hindu Mitakshara Family, a son acquires by birth an interest equal to that of the father in ancestral property.
The father by reason of his paternal relation and his position as the head of the family is its Manager and he is entitled to alienate joint family property so as to bind the interests of both adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an antecedent debt.
The power of the Manager of a joint Hindu family to alienate a joint Hindu family property is analogous to that of a Manager for an infant heir as observed by the Judicial Committee in Hunooman persaud Panday vs Mussumat Babooee Munraj Koonweree, Moore 's on Indian Appeal ( 1856, Vol.
VI) 393: "The power of a Manager for an infant heir to charge ancestral estate by loan or mortgage, is, by the Hindu Law, a limited and qualified power, which can only be exercised rightly by the Manager in a case of need, or for the benefit of the estate.
But where the charge is one that a prudent owner would make in order to benefit the estate, a bona fide lender is not affected by the precedent mismanagement of the estate.
The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, in the particular instance, or the criteria to be regarded.
If that danger arises from any misconduct to which the lender has been a party, he cannot take advantage of his own wrong to support a charge in his favour against the heir, grounded on a necessity which his own wrong has helped to cause.
A lender, however, in such circumstances, is bound to inquire into the necessities of the loan, and to satisfy himself as well as he can, with reference to the parties with 632 whom he is dealing, that the Manager is acting in the A particular instance for the benefit of the estate.
If he does inquire, and acts honestly, the real existence of an alleged and reasonably credited necessity is not a condition precedent to the validity of his charge, which renders him bound to see to the application of the money.
" At the outset it is to be noticed that in a suit for permanent injunction under section 38 of the by a coparcener against the father or Manager of the Joint Hindu family property, an injunction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property.
Sub Section (h) of Section 38 of bars the grant of such an injunction in the suit.
Secondly, the plaintiff respondents brought this suit for permanent injunction restraining their father, the defendant No. 1, from selling or alienating the property to the defendant No. 2 or any other person and also restraining the defendant No. 2 from proceeding with the suit for specific performance of the agreement to sell pending in the civil court.
Thus the relief sought for is to restrain by permanent injunction the Karta of the Joint Hindu Mitakshara Family, i.e. defendant No. 1, from selling or alienating the house property in question.
The defendant No. 1 as Karta of the joint Hindu family has undoubtedly, the power to alienate the joint family property for legal necessity or for the benefit of the estate as well as for meeting antecedent debts.
The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the suit property belonging to the joint Hindu Undivided Family even if there is a genuine legal necessity for such transfer.
If such a suit for injunction is held maintainable the effect wi be that whenever the father as Karta of the Joint Hindu coparcener property will propose to sell such property owing to a bona fide legal necessity, any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity until and unless that suit is decided.
The judgment in Shiv Kumar Mool Chand Arora vs Mool Chand Jaswant Singh, AIR 1972 (Pub. & Har.) 147 wherein it was held that a suit for permanent injunction against the father to restrain him from alienating the joint Hindu family property was maintainable has been off set by the Division Bench in Jujhar Singh vs Ciani Talok Singh, (supra) wherein it has been held that a suit for permanent injunction by a coparcener against the father for restraining him from alienating the house property belonging to the joint Hindu family for legal neces 633 sity was not maintainable because the coparcener had got the remedy of challenging the sale and getting it set aside in a suit subsequent to the completion of the sale.
Following this decision the High Court allowed the appeal holding that the suit was not maintainable reversing the judgment and decree of the Trial Court.
We do not find any infirmity in the findings arrived at by the High Court.
It has, however, been submitted on behalf of the appellant that the High Court should have held that in appropriate cases where there are acts of waste, a suit for permanent injunction may be brought against the Karta of the joint Hindu famiiy to restrain him from alienating the property of the joint Hindu family.
This question is not required to be considered as we have already held that the instant suit for injunction as framed is not maintainable.
We, of course, make it clear that in case of waste or ouster an injunction may be granted against the Manager of the joint Hindu family at the instance of the coparcener.
But nonetheless a blanket injunction restraining permanently from alienating the property of the joint Hindu family even in the case of legal necessity, cannot be granted.
It further appears that the defendant No. 1, Ram Parkash entered into the agreement of sale stating that he is the owner of the suit property.
The plaintiff appellants claim the suit property as ancestral property and they as coparceners of joint Hindu Mitakshara family have equal shares with their father in the suit property.
The question whether the suit property is the self acquired property of the father or it is the ancestral property has to be decided before granting any relief.
The suit being one for permanent injunction, this question cannot be gone into and decided.
It is also pertinent to note in this connection that the case of specific performance of agreement of sale bearing suit No. 570 of 1978 had already been decreed on 11th May, 1981 by the Sub Judge, Ist Class, Kaithal.
For the reasons aforesaid we affirm the judgment and decree made by the High Court and dismiss the appeal without any order as to costs.
JAGANNATHA SHETTY, J.
I agree that this appeal should be dismissed but I add a few words of my own The question raised in the appeal is whether interference of the Court could be sought by a coparcener to interdict the Karta of Hindu undivided family from alienating coparcenary property.
The question is of considerable importance and there seems to be but little authority in decided cases.
634 The facts of the case lie in a narrow compass.
In February, 1978, Ram Prakash entered into agreement for sale of certain house property in favour of Jai Bhagwan.
The property has been described in the agreement as self acquired property of Ram Prakash.
It was agreed to be sold for Rs.21,400.
Jai Bhagwan paid Rs.5000 as earnest money on the date of agreement.
He promised to pay the balance on the date of execution of the sale deed.
Ram Prakash, however, did not keep up his promise.
He did not execute the sale deed though called upon to do so Jai Bhagwan instituted a suit for specific performance of the agreement.
In that suit, Rakesh Kumar and his brothers who are the sons of Ram Prakash wanted to be impleaded as parties to the suit.
They want to resist the suit for specific performance.
But the (Court did not permit them.
The Court said that they were unnecessary parties to the suit.
Being unsuccessful in that attempt, they instituted a suit for permanent injunction against their father.
They wanted the Court to restrain their father from alienating the house property to Jai Bhagwan or to any body else.
Their case was that the said house was their coparcenary property and the proposed sale was neither for legal necessity nor for benefit of the joint family estate.
The suit for injunction was practically tried as a suit for declaration.
A lot of evidence was adduced on various issues, including the nature of the suit property.
The trial court ultimately decreed the suit with the following findings: The suit property was coparcenary pro perty of the joint family consisting of Ram Prakash and his sons.
Jai Bhagwan has failed to prove that the proposed sale was for legal necessity of the joint family.
He has also failed to prove that the intended sale was for benefit of the estate.
Ram Prakash being the manager of the family cannot alienate coparcenary property in the absence of those two requirements.
The sons could restrain their father from alienating the coparcenary property since the proposed sale was without justification Jai Bhagwan died during the pendency of the suit.
His wife and children challenged the decree of the trial court in an appeal before the Additional District Judge, Kurukshetra.
By then, the Punjab & Haryana High Court had declared in Jujhar Singh vs Giani Talok Singh, [1968] P.L J. 346 that a suit for injunction to restrain Karta from alienating coparcenary property is not maintainable.
The learned District Judge following the said decision reversed the decree of the trial court and dismissed the suit.
The plaintiff preferred second appeal which was summarily dismissed by the High Court.
635 The plaintiffs, by special leave, have appealed to this Court.
The arguments for the appellants appear to be attractive and are as follows: There is no presumption under law that the alienation of joint family property made by Karta is valid.
The Karta has no arbitrary power to alienate joint family property.
He could do so only for legal necessity or for family benefit.
When both the requirements are wanting in the case, the coparceners need not vainly wait till the transaction is completed to their detriment.
They are entitled to a share in the suit property.
They are interested in preserving the property for the family.
They could, therefore, legitimately move the court for an action against the Karta in the nature of a quia timet.
As a preliminary to the consideration of the question urged, it will be necessary to examine the structure of joint Hindu family, its incidents and the power of Karta or manager thereof.
The status of the undivided Hindu family or the coparcenary is apparently, too familiar to every one to require discussion.
I may, however, refer in laconie details what is just necessary for determining the question urged in this appeal.
JOlNT HINDU FAMILY: Those who are of individualistic attitude and separate ownership may find it hard to understand the significance of a Hindu joint family and joint property.
But it is there from the ancient time perhaps, as a social necessity.
A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters.
They are bound together by the fundamental principle of sapindaship or family relationship which is the essential feature of the institution.
The cord that knits the members of the family is not property but the relationship of one another.
The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like.
It is a narrower body than joint family.
It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees.
The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants upto three degrees can offer spiritual ministration to 636 an ancestor only males can be coparceners.
[See: Hindu Law by A N.R. Raghavachariar 8th Ed.
p. 202].
In an early case of the Madras High Court in Sudarshan Maistri vs Narasimhulu Maistri and anr.
, ILR 25 MAD 149 Bhashyam Ayyanger, J. made the following pregnant observations about the R nature of the institution and its incidents at p. 154: "The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body (Gan Savant Bal Savant vs Narayan Dhond Savant), (I.L.R. at p. 471) and Mayne 's Hindu Law and Usage, 6th edition, paragraph 270 and the possession of property by such corporate body.
The first requisite therefore is the family unit; and the possession by it of property is the second requisite.
For the present purpose female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line and so long as that family is in its normal condition viz. the undivided state it forms a corporate body Such corporate body, with its heritage, is purely a creature of law and cannot be created by act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family".
Adverting to the nature of the property owned by such a family, learned Judge proceeded to state at p. 155: "As regards the property of such family, the 'unobstructed heritage ' devolving on such family, with its accretions, is owned by the family as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'unobstructed heritage ' which, with its accretions, may be exclusively owned by such branch as a corporate body.
" This statement of law has been approved by the Supreme Court in Bhagwan Dayal vs Mst.
Reoti Devi, [ ; p. 477 Managing Member and His Powers: In a Hindu family, the karta or manager occupies a unique posi 637 tion It is not as if anybody could become manager of a joint Hindu family. "As a general rule, the father of a family, if alive, and in his absence the senior member of the family, is alone entitled to manage the joint family property.
" The manager occupies a position superior to other members.
He has greater rights and duties.
He must look after the family interests.
He is entitled to possession of the entire joint estate He is also entitled to manage the family properties.
In other words, the actual possession and management of the joint family property must vest in him.
He may consult the members of the family and if necessary take their consent to his action but he is not answerable to every one of them.
The legal position of karta or manager has been succinctly summarised in the Mayne 's Hindu Law (12th Ed.
para 318) thus: 318.
Manager 's Legal position "The position of a karta or manager is sui generis; the relation between him and the other members of the family is not that of principal and agent, or of partners.
It is more like that of a trustee and cestui que trust.
But the fiduciary relationship does not involve all the duties which are imposed upon trustees.
" The managing member or karta has not only the power to manage but also power to alienate joint family property.
The alienation may be either for family necessity or for the benefit of the estate.
Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors.
The oft quoted decision in this aspect, is that of the Privy Council in Hanuman Parshad vs Mt. Babooee, [ There it was observed at p. 423: ( 1) "The power of the manager for an infant heir to charge an estate not his own is, under the Hindu law, a limited and qualified power.
It can only be exercised rightly in case of need, or for the benefit of the estate.
" This case was that of a mother, managing as guardian for an infant heir.
A father who happens to be the manager of an undivided Hindu family certainly has greater powers to which I will refer a little later.
Any other manager however, is not having anything less than those stated in the said case.
Therefore, it has been repeatedly held that the principles laid down in that case apply equally to a father or other coparcener who manages the joint family estate.
Remedies against alienations: Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family for the reasons aforesaid, the law raises no presumption as to the validity of his trans 638 actions.
His acts could be questioned in the Courts of law.
The other members of the family have a right to have the transaction declared void, if not justified.
When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was Iegal necessity in fact or that he made proper and bonafide enquiry as to the existence of such necessity.
It would be for the alienee to prove that he did all that was reasonable to satisfy himself as to the existence of such necessity.
If the alienation is found to be unjustified, then it would be declared void.
Such alienations would be void except to the extent of manager 's share in Madras, Bombay and Central Provinces.
The purchaser could get only the manager 's share.
But in other provinces, the purchaser would not get even that much.
The entire alienation would be void.
[Mayne 's Hindu Law 11th ed.
para 396].
In the light of these principles, I may now examine the correctness of the contentions urged in this appeal.
The submissions of Mr H.N. Salve, as I understand.
proceeded firstly on the premise that a coparcener has as much interest as that of karta in the coparcenary property.
Second, the right of copercener in respect of his share in the ancestral property would remain unimpaired, if the alienation is not for legal necessity or for the benefit of the estate.
When these two rights are preserved to a coparcener, why should he not prevent the Karta from dissipating the ancestral property by moving the Court? Why should he vainly wait till the purchaser gets title to the property? This appears to be the line of reasoning adopted by the learned counsel.
I do not think that these submissions are sound.
It is true that a coparcener takes by birth an interest in the ancestral property, but he is not entitled to separate possession of the coparcenary estate.
His rights are not independent of the control of the karta.
It would be for the karta to consider the actual pressure on the joint family estate.
It would be for him to foresee the danger to be averted.
And it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family.
A coparcener cannot interfere in these acts of management.
Apart from that, a father karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality.
If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property.
No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive 639 Of the right to obstruct alienation.
Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation.
These are two distinct rights.
One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance.
The other is a right to interfere with the act of management of the joint family affairs.
The coparcener cannot claim the latter right and indeed, he is not entitled for it.
Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property.
There is one more difficulty for the sustainability of the suit for injunction with which we are concerned.
Temporary injunction can be granted under sub section (l) of Section 37 of the .
It is regulated by the Code of Civil Procedure, 1908.
A decree for perpetual injunction is made under sub section (2) of Section 37.
Such an injunction can be granted upon the merits of the suit.
The injunction would be to restrain the defendant perpetually from the commission of an act, which would be contrary to the rights of the plaintiff Section 38 of the governs the grant of perpetual injunction and sub section 3 thereof, reads: "When the defendant invades or threatens to invade the plaintiff 's right to, or enjoyment of, property, the Court may grant a perpetual injunction in the following cases, namely: (a) Where the defendant is trustee of the property for the plaintiff; (b) Where there exists no standard for ascertaining the actual damage caused or likely to be caused, by the invasion; (c) Where the invasion is such that compensation in money would not afford adequate relief; (d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings".
The provisions of Section 38 have to be read alongwith section 41.
Section 41 provides that an injunction cannot be granted in the cases falling under clauses (a) to (j).
Clause (h) thereunder provides that an injunction cannot be granted when a party could obtain an 640 efficacious relief by any other usual mode of proceeding (except in case of breach of trust).
The coparcener has adequate remedy to impeach the alienation made by the karta.
He cannot, therefore, move the Court for an injunction restraining the karta from alienating the coparcenary property.
lt seems to me that the decision of the Punjab & Haryana High Court in Jujhar Singh vs Giani Talok Singh, has correctly laid down the law.
There it was observed at p. 348: "If it is held that such a suit would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal.
The legal necessity or the purpose of the proposed sale which may be of pressing and urgent nature, would in most cases be frustrated by the time the suit is disposed of.
Legally speaking unless the alienation in fact is completed there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no right recognised in law to maintain a suit to prevent the proposed sale.
The principle that an injunction can be granted for preventing waste by a manager or karta obviously would not be applicable to such a suit because the proposed alienation for an alleged need or the benefit of the estate cannot be said to be an act of waste by any stretch of reasoning.
We are, therefore, of the considered view that a coparcener has no right to maintain a suit for permanent injunction restraining the manager or the karta from alienating the coparcenary property and his right is only to challenge the same and to recover the property after it has come into being." From the above discussion of the principles of Hindu Law and in the light of the provisions of the , I think, therefore, there ought to be no hesitation on my part to dismiss this appeal and I dismiss the same with cost S.L. Appeal dismissed.

summary:
% The defendant respondent No. 1, Ram Prakash as Karta of a Joint Hindu Family executed an agreement to sell the suit property and received a sum of Rs.5,000 as earnest money.
He, however, refused to execute the sale deed.
The defendant No. 2 Jai Bhagwan, instituted a suit in the Court of the Sub Judge for specific performance of the agreement and in the alternative for a decree for recovery of Rs.10,000.
In the said suit, the appellants Nos.
I and 2 and the respondent No. 11, the sons of defendant respondent No. 1, made an application for being impleaded.
The application was dismissed.
Thereupon, the three sons of defendant No. 1 instituted a civil suit in the Court of the Sub Judge for permanent injunction, restraining the defendant No.1 from selling or alienating the property above said to the defendant No.2 or any other person and restraining the defendant No.2 from proceeding with the suit for specific performance aforementioned, as the property in question was a Joint Hindu Family Coparcenary property of the plaintiff and the defendant No. t, and there was no legal necessity for sale of the property, nor was it an act of good management to sell the same to the defendant No.2 without the consent of the plaintiffs.
The trial Court held that the house property in question was the ancestral property of the Joint Hindu Mitakshara Family and the defendant No. 1, the father of the plaintiffs, was not competent to sell the same except for a legal necessity or the benefit of the estate, and that since the plaintiffs ' application for impleading them in the suit for specific performance of the contract of sale had been dismissed and the plaintiffs were coparceners having interest in the property, the present suit was the only remedy available to them, and was maintainable in the present form.
Against this judgment and decree, the defendants, the legal rep 624 resentatives of defendant No. 2 since deceased, preferred an appeal.
The Appellate Courts held that a coparcener had no right to maintain a suit for permanent injunction, restraining the manager or Karta from alienating the coparcenary property and the coparcener had the right only to challenge the alienation of coparcenary property to recover the property after the alienation had come into being.
The judgment and decree of the trial court were set aside.
The appellants, i.e. the sons of the defendant respondent No. 1, appealed to this Court for relief by special leave against the decision of the High Court.
In this appeal the Court was called upon to decide the only question whether the suit for permanent injunction restraining the Karta of the joint Hindu family from alienating house property belonging to the joint Hindu family in pursuance of the agreement to sell executed in favour of the predecessor of the appellants, Jai Bhagwan, since deceased, was maintainable.
It is well settled that in a Joint Hindu Mitakshara family, a son acquires by birth an interest equal to that of the father in the ancestral property.
The father by reason of his paternal relation and his position as the head of the family is its manager and he is entitled to alienate the joint family property so as to bind the interests of both the adult and minor coparceners in the property, provided that the alienation is made for legal necessity or for the benefit of the estate or for meeting an E antecedent debt.
The power of the Manager of a joint Hindu family property is analogous to that of a Manager for an infant heir as observed by the Judicial Committee in Hunoomanpersaud Pandey vs Mussumat Bobooee Munraj Koonweree Moore 's on Indian Appeal ( 1856 Vol.
Vl) 393.
[631C E] In a suit for permanent injunction under section 38 of the Specific Relief Act by a coparcener against the father or Manager of the joint Hindu family property, an in junction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property.
Sub section (h) of section 38 of the Specific Relief Act bars the grant of such an injunction.
Secondly, the plaintiff respondents brought the suit for permanent injunction restraining their father, the defendant No. t, from selling or alienating the property to defendant No. 2 or any other person, etc.
Thus the relief sought for was to restrain by permanent injunction the Karta of the Joint Hindu Mitakshra family from selling or alienating the property.
The delendant No. 1 as Karta of the joint Hindu family had undoubtedly the power to alienate the joint family property for legal necessity or for 625 the benefit of the estate as well as for meeting antecedent debts.
[632 B E] A The grant of such a relief will have the effect of preventing the father permanently from selling or transferring the property belonging to the joint Hindu family even if there is a genuine legal necessity.
If such a suit for injunction is held maintainable, the effect will be that whenever the father as Karta of the joint Hindu coparcenary property will propose to sell such property owing to a bona fide legal necessity, any coparcener may come up with such a suit for permanent injunction and the father will not be able to sell the property for legal necessity till that suit is decided.
In case of waste or ouster, an injunction may be granted against the manager of the joint Hindu family at the instance of the coparcener, but a blanket injunction restraining the manager permanently from alienating the property of a joint Hindu family even in the case of legal necessity, cannot be granted.
[632G H; 633A, D] It appeared that the defendent No. t entered into the agreement of sale stating that he was the owner of the suit property.
The plaintiffs appellants claimed the suit property was the joint family property and they as coparceners of the joint Hindu Mitakshra family had equal shares with their father in the suit property.
The question whether the suit property was the self acquired property of the father or was the ancestral property, had to be decided before granting any relief.
The suit being for permanent injunction, this question could not be gone into and decided.
[633D E] The appeal was dismissed and the judgment and decree of the High Court were affirmed.
[633F] Per K. Jagannatha Shetty, J. (concurring) The question raised in the appeal was whether interference of the Court could be sought by a coparcener to interdict the Karta of a Hindu undivided family from alienating coparcenary property.
The question was of considerable importance and there seemed to be but little authority in the decided cases.
The facts of the case lay in a narrow compass.
Ram Prakash entered into an agreement for sale of certain house property in favour of Jai Bhagwan, which was described as a self acquired property of Ram Prakash.
Jai Bhagwan paid Rs.5000 as earnest money on the date of the agreement and promised to pay the balance on the date of execution of the sale deed.
Ram Prakash, however, did not execute the sale 626 deed.
Jai Bhagwan instituted a suit for specific performance of the agreement.
In that suit, the sons of Ram Prakash wanted to be impleaded as parties to resist the suit for specific performance, but the court did not permit them.
Thereupon, they instituted a suit for permanent injunction against their father, restraining him from alienating the property to Jai Bhagwan or any body else, on the ground that the said house was their coparcenary property and the proposed sale was neither for legal necessity nor for the benefit of the joint family estate.
The suit for injunction was practically tried as a suit for declaration.
The trial court decreed the suit with the following findings: The suit property was coparcenary property of the joint family of Ram Prakash and his sons.
Jai Bhagwan had failed to prove that the proposed sale was for the legal necessity of the joint family or for the benefit of the estate.
Ram Prakash being the manager of the family could not alienate the coparcenary property in the absence of these two requirements.
The sons could restrain their father from alienating the coparcenary property since the proposed sale was without justification.
The wife and children of Jai Bhagwan, who had died during the pendency of the suit, challenged the decree of the trial court in appeal before the Additional District Judge.
The District Judge reversed the decree of the trial court and dismissed the suit.
The plaintiffs preferred second appeal which was dismissed by the High Court.
The plaintiff appealed to this Court by special leave.
As a preliminary to the consideration of the question involved, it would be necessary to examine the structure of the joint Hindu family, its incidents and the power of its Karta or manager.
[635D] Joint Hindu Family: joint Hindu family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters.
They are bound together by the fundamental principle of sapindaship or family relationship which is the essential feature of the institution.
The cord that knits the members of the family is not property but the relationship of one another.
[635F] The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like.
It is a narrower body than a joint family.
It commences with a common ancestor and includes a holder of joint property 627 and only those males in his male live who are not removed from him by more than three degrees.
Only males can be coparceners.
[635G H; 636A] Managing Member and his powers: In a Hindu family, the Karta or manager occupies a unique position.
He has greater rights and duties.
He must look after the family interests.
He is entitled to possession of the entire joint estate.
He is also entitled to manage the family properties.
In other words, the actual possession and management of the joint family property must vest in him.
[637Bl The managing member or Karta has not only the power to manage but also the power to alienate joint family property.
The alienation may be either for family necessity or for the benefit of the estate.
Such alienation would bind the interests of all the undivided members of the family, adults or minors.
[637E] Remedies against alienations: Although the power of disposition of joint family property has been conceded to the manager of joint Hindu family, the law raises no presumptions as to the validity of his transactions.
His acts could be questioned in the court of law.
The other members of the family have a right to have the transaction declared void, if not justified.
When an alienation is challenged as unjustified or illegal, it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity and satisfied himself as to the existence of such necessity.
If the alienation is found to be unjustified, it would be declared void.
Such alienations would be void except to the extent of the manager 's share, in Madras, Bombay and Central provinces.
The purchaser could get only the manager 's share.
In other provinces, the purchaser would not get even that much.
The entire alienation would be void.
[637H; 638A C] In the light of these principles, his Lordship did not think that the submissions of Mr. H.N. Salve were sound.
It is true that a coparcener takes by birth an interest in the ancestral property but he is not entitled to separate possession of the coparcenary estate.
His rights are not independent of the control of the Karta.
It would be for the Karta to consider the actual pressure on the joint family estate and to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family.
A coparcener cannot interfere in 628 these acts of management.
A father Karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt not tainted with immorality.
If there is no such need or benefit, the purchaser takes risk and the right and interest of the coparcener will ramming unimpaired in the alienated property.
No doubt the law confers a right on the coparcener to challenge the alienation made by Karta, but that right is not inclusive of the right to obstruct aliention.
Nor could the right to obstruct alienation be considered incidental to the right to challenge the alienation.
The coparcener cannot claim the right to interfere with the act of management of the joint family affairs; he is not entitled for it.
Therefore, he cannot move the Court to grant relief by injunction restraining the Karta from alienating the coparcenary property.
[638D E, G H; 639A B] There was one difficulty for the sustainability of the suit for injunction.
Temporary injunction can be granted under sub section (I) of section 37 of the .
A decree for perpetual injunction is made under sub section (2) of section 37.
Such an injunction can be granted upon the merits of the suit.
The injunction would be to restrain the defendant perpetually from commission of an act contrary to the rights of the plaintiff.
Section 38 of the governs the grant of perpetual injunction.
The provisions of section 38 have to be read alongwith section 41, the clause (h) whereof provides that an injunction cannot be granted when a party could obtain an efficacious relief by any other usual mode of proceeding (except in the case of a breach of trust).
The coparcener has adequate remedy to impeach the alienation made by the Karta.
He cannot, therefore, move the court for an injunction restraining the Karta from alienating the coparcenary property.
The decision of the Punjab & Haryana High Court in Jujhar Singh vs Giani Talok Singh, , 348 has correctly laid down the law.
[639C D, H; 640A B] From the above discussions of the principles of Hindu Law and in the light of the provisions of the , his Lordship dismissed the appeal.
[640G ] Shiv Kumar vs Mool Chand, CLJ 1971 page 1027; Jujhar Singh vs Giani Talok Singh, , 348; Hunooman Persaud Pandey vs Mussumat Babooee Munraj Koonweree Moore 's on Indian Appeal, [1856] Vol.
VI 393; Shiv Kumar Mool Chand Arora vs Mool Chand Jaswant Singh, A.I.R. 1972 (Punjab & Haryana) 147; Sudarshan Maistri vs Narasimhulu Maistri and Anr., ILR 25 Mad, 149 and Bhagwan Dayal vs Mst.
Reoti Devi, , 477.


judgement:
ivil Appeal No. 119 of 1953.
Appeal by special leave from the order dated September 11, 1950, of the Nagpur High Court in Miscellaneous Civil Case No. 77 of 1946.
C.K. Daphtary, Solicitor General of India and M.S. K. Sastri, for the appellants.
A.V. Vishwanatha Sastri, G. J. Ghate and Naunit Lal, for the respondent.
December 18.
The following Judgment of the Court was delivered by KAPUR J. This is an appeal by Special Leave against a Judgment and order of the High Court of Judicature at Nagpur dated February 14, 1950 and the question for decision turns upon the construction of section 66(1)(0) of the C. P. & Berar Municipalities Act (Act II of 1922) which in this judgment will be termed the Act.
A short recital of the facts of the case will suffice for its decision.
The appellant is a company which has its spinning and weaving mills at Yeotmal.
The appellant 's bales of cotton are transported from Yeotmal to Nagpur by road and vehicles carrying them pass through the limits of Wardha Municipality.
The goods being in transit, the vehicles carrying them do no more than use the road which traverses the municipal limits of Wardha and is a P.W.D. road.
The goods are neither unloaded nor reloaded at 1104 Wardha but are merely carried across through the municipal area.
The Municipal Committee purporting to act under section 66(1)(0) of the Act and r. I of the rules made thereunder collected Rs. 240 as terminal tax on these goods on the ground that they were ex ported by the appellant from the limits of the Municipality of Wardha.
The appellant thereupon claimed a refund of this sum.
On refusal by the Municipality the appellant took an appeal to the Deputy Commissioner, Wardha which was sent for disposal to the Sub Divisional Officer, who, on March 11, 1946, referred the following two questions under section 83(2) of the Act to the High Court for its opinion: (1)Whether goods passing through the limits of Wardha Municipality by road despatched from Yeotmal to their destination at Nagpur without being unloaded or reloaded at Wardha are liable for an export terminal tax ? (2)Whether the respondent Municipal Committee is not liable to refund the export terminal tax collect ed on such goods ? The reference in the first instance came up for hearing before Sheode, J., who referred the matter to a Division Bench and the Division Bench in turn referred it to a Full Bench.
The High Court after referring to a number of decided cases was of the opinion that the tax had been validly imposed and the appellant was therefore not entitled to a refund.
The powers of the Municipality to impose, assess and collect taxes are set out in chapter 9 of the Act and section 66(1) enumerates the taxes which may be imposed.
Clause (d) of sub section (1) deals, with tolls; cl.
(e) with octroi and cl.
(o) with terminal tax.
The sub section provides: " 66(1) A committee may, from time to time, and subject to the provisions of this Chapter, impose in the whole or in any part of the municipality any of the following taxes for the purposes of this Act, namely: (a) a tax payable by the owners of buildings or lands situate within the limits of the municipality, 1105 with reference to the gross annual letting value of the buildings or lands; (b) a tax on persons exercising any profession or art, or carrying on any trade or calling, within the limits of the municipality; (c) a tax, payable by the owner, on all or any( vehicles or animals used for riding, driving, draught or burden, or on dogs, where such vehicles, animals or dogs are kept within the limits of the municipality ; (d) a toll on vehicles and animals used as aforesaid entering the limits of the municipality, and on boats moored within those limits: Provided that a toll under this clause shall not be payable on any vehicle or animal on which a tax under clause (c) has been imposed.
(e) an octroi on animals or goods brought within the limits of the municipality for sale, consumption or use within those limits; (f)market dues on persons exposing goods for sale in market or in any place belonging to or under the control of the Government or of the committee ; (g) fees on the registration of cattle sold within the limits of the municipality; (h) a latrine or conservancy tax payable by the occupier (or owner) upon private latrines, privies or cesspools, or upon premises or compounds cleansed by municipal agency; (j) a tax for the construction and maintenance of public latrines; (k) a water rate, where water is supplied by the committee ; (l) a lighting rate where the lighting of public streets,places and buildings is undertaken by the committee ; (m) a drainage tax, where a system of drainage has been introduced; (n) a tax payable by the occupiers of buildings or lands within the limits of the municipality, according to their circumstances and property within those imits; 1106 (o) a terminal tax on goods or animals imported into or exported from the limits of a municipality : Provided that a terminal tax under this clause and an octroi under clause (e) shall not be in force in any municipality at the same time; and (p) a tax on (i) persons travelling by railway to or from a municipality to which pilgrims resort, or (ii) pilgrims visiting a shrine within the limits 'of a municipality Rule I of the Terminal Tax Rules made under the Act relates to exports and r. 2 to imports.
They provide: (1) On the following goods exported by rail or road a terminal tax shall be levied at the rate noted against each ; at 2 as.
per maund of 40 seers; Cotton. . . (2) On the following goods imported by rail or road a terminal tax shall be levied at the rate noted against each.
Then follows the schedule.
The High Court was of the opinion that "The words ' export ' and I import ' have no special meaning.
They bear the ordinary dictionary meaning, which has been the foundation for the decisions to which I have referred in the opening portion of my opinion.
These words mean only 'taking out of and bringing into '.
" The appellant 's contention is that the words 'imported into or exported from ' do not merely mean 'to bring into ' or to carry out of or away from but also have reference to and imply the termination or the commencement of the journey of the goods sought to be taxed and therefore goods in transit which are transported across the limits of a Municipal Committee are neither imported into the municipal limits nor exported therefrom.
It is also contended that even if the words ,imported into or exported from ' are used merely to mean "to bring into" or "to carry out of or away from" the qualifying of the tax by the adjective "terminal" 1107 is indicative of the terminus ad quem or terminus a quo of the journey of the goods and excludes the goods in transit.
The respondent on the other hand submits that the tax is leviable merely on the entry of the goods into the municipal limits or on their exit there.
from and the word "terminal" has reference to the termini of the jurisdictional limits of the municipality and not to the journey of the goods.
The efficacy of the relative contentions of the parties therefore requires the determination of the construction to be placed on the really important words of which are "terminal tax", "imported into or exported from" and " the limits of the Municipality".
In construing these words of the statute if there are two possible interpretations then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him. 'Import ' is derived from the Latin word importare which means 'to bring in ' and 'export ' from the Latin word exportare which means to carry out but these words are not to be interpreted only according to their literal derivations.
Lexico logically they do not have any reference to goods in 'transit 'a word derived from transire bearing a meaning similar to transport, i.e., to go across.
The dictionary meaning of the words 'import ' and 'export ' is not restricted to their derivative meaning but bear other connotations also.
According to Webster 's International Dictionary the word "import" means to bring in from a foreign or external source; to introduce from without; especially to bring (wares or merchandise) into a place or country from a foreign country in the transactions of commerce; opposed to export.
Similarly "export" according to Webster 's International Dictionary means "to carry away; to remove; to carry or send abroad especially to foreign countries as merchandise or commodities in the way of commerce; the opposite of import ".
The Oxford Dictionary gives a similar meaning to both these words.
The word "transit" in the Oxford Dictionary means the action or fact of passing across or through; passage 141 1108 or journey from one place or point to another; the passage or carriage of persons or goods from one place to another ; it also means to pass across or through (something) to traverse, to cross.
Even according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods 'imported into or exported from ' because they are neither being exported nor imported but are merely goods carried across a particular stretch of territory or across a particular area with the object of being transported to their ultimate destination which in the instant case was Nagpur.
The respondent 's counsel sought to support his argument by referring to the following cases decided by various Indian High Courts where the words ,import ' and 'export ' were construed as meaning 'bring in ' or 'take out of or away from ' and it was also held that goods in transit are also covered by the words 'imported into 'or 'exported from '.
In Re Rahimu Bhanji (1) which was a case of a criminal prosecution for refusal to pay octroi on the ground that octroi was not due on goods in transit, the court gave a literal meaning to the word "import" and held that as the goods had been brought within the limits of the Municipality they were liable to octroi under the Rules which provided for a refund, which could be applied for.
The definition of octroi seems to have been ignored in that case.
In Narottamdas Harjivandas & Co. vs Bulsar Town Municipality (2) the tax was imposed on goods in transit and the argument raised was that the municipality had no power to impose a terminal tax upon such goods as were not meant for consumption within the limits of the Municipality.
The court held: "In our opinion there is no force in this contention.
The Municipal Rules and Bye laws dealing with the terminal tax define it as 'an octroi levied on the import into the said Municipality of goods specified in the Terminal Tax Schedule, such octroi not (I) Bom.
(2) I.L.R. , 103.
1109 being liable to be refunded. ' 'Import ' is defined in the Rules as meaning 'conveying goods by Railway or by Ship or otherwise into Municipal limits '.
It is clear therefore that the tax is leviable on all goods entering Municipal limits whether they are intended for consumption within the city or whether they are ', merely in transit through the city to some other place ".
This decision rested on the definition of the words " import " and " terminal tax " without taking into consideration the meaning of 'octroi ' which implies consumption, use or sale.
Besides these observations were really obiter because the court held that the goods never entered the limits of the Municipality and consequently no tax was chargeable.
Dalvadi Maganlal Bhagwandas vs Ahmedabad Municipality (1) was a case in which bricks manufactured within the limits of the Ahmedabad Municipality had in order to be carried to the place of business of the manufacturer, which was in another part of the town, to be temporarily taken out of the limits of the Municipality and re entered at another point.
The re entry was held to be " import " on the basis of the dictionary meaning of the word and because " import" had no reference to and was not qualified by any consideration of the place of manufacture or place of consumption.
Rajadhyaksha J., said at p. 137: " There is no such limitation on the meaning of the word import " which must be given its ordinary meaning and at p. 140 the learned Judge observed: " We are of the opinion that the word " import in r. 380, Ahmedabad Municipal Code must be given its ordinary meaning, and that is " to bring something within the Municipal limits from a place without its boundaries ", irrespective of the consideration as to whether the goods were manufactured within the Municipal limits, how long they were outside those limits and for what purpose".
(1) I.L.R. 1110 The two Nagpur cases relied upon were Bhagwandas Harikishandas vs Municipal Committee, Yeotmal (1) and Kashiram Jhabarmal Firm vs Municipal Committee, Nagpur (2).
In the former case the decision was again based solely on the literal dictionary meaning of the words " imported into or exported from ", and a further argument relying on the existence of the word " or " between "imported and exported " instead of "and. . as an argument against the ,imposition of the tax on goods in transit was also repelled.
In the latter case where the goods were brought into the municipal limits for being despatched by rail the court again relied on the " plain meaning of the words "imported into or exported from " and also on certain government instructions which were in favour of the imposition of tax on goods in transit.
There are also some unreported judgments of the Nagpur High Court taking a different view of the words" imported into or exported from" and those have been referred to in the judgment of Grille C. J. in Kashiram 's case (2) and in the referring order of Sheode J., in the present case.
Emperor vs Har Dutt (3) was a case of payment of toll tax in respect of a lorry brought within the limits of the Municipality through the toll barrier.
The word used in Rule I in that case was " bring " and it was held that bringing has no element of pause or repose.
This case is hardly relevant to the facts of the case now before us.
In an earlier case Nek Mohammad vs Emperor (4) to the words " bring " and " import " an element of pause and repose was attached, but this case was not approved of in Hardwarimal Harnath Das vs Municipal Board, Dehradun (5) which also was a case of goods in transit.
The word " import " was there given the meaning " carried into ".
But the decision was based on the definitions given in the Statutory Rules to the word " import " which was " bringing into the terminal tax limits from outside those limits ".
(1) A.I.R (1945) Nag.
(2) I.L.R. (1946) Nag.
(4) A. I. R. (1936) All.
(3)A.I.R. (1936) All. 743.
(5) I. L. R. (1940) All.
1111 In none of these cases was the argument as to the qualification stemming from the use of the words "terminal tax" considered nor was the signification of the word "terminal " as a prefix to the word tax discussed.
The respondent also relied on Muller vs Baldwin (1) where it was held that " coals exported from the Port" must be taken to have been used in its ordinary meaning of " carried out of the Port " and therefore included coals taken out of the port in a steamer as " bunker coals " that is, coals taken on board for the purpose of consumption on the voyage.
The argument that the term " exported " must receive a qualified interpretation and that it means taken for the.
purpose of trade only was rejected.
Lush J. said at p. 461 : " There is nothing in the language of the Act to shew that the word "exported " was used in any other than its ordinary sense. . .
Construing the words of the Act upon this principle, we feel bound to hold that coals carried away from the port, not on a temporary excursion, as in a tug or pleasure boat, which intends to return with more or less of the coals on board, and which may be regarded as always constructively within the port, but taken away for the purpose of being wholly consumed beyond the limits of the port, are coals " exported " within the meaning of the Act ".
Now three things clearly emerge from that (Muller 's) case; (1) that the word "export " was not applied to coals in transit because the coals were taken from the port and started journey from there and would be included in the phrase "taken out" of the port and (2) that temporary taking out was not " export " as was held in Maganlal Bhagwandas vs Ahmedabad Municipality (2); (3) that the test is the intention with which the goods were brought in or taken out.
It was urged that in accordance with the current authority of the different courts of India, a different interpretation should not be placed on the words of the section but this argument is of little avail in a case (1) (1874) 9 Q B 457.
(2) I.L.R. 1112 where the decision has not been acquiesced in for long or the authorities are not absolutely unanimous.
Moreover it is not a case of disturbing the course of construction which has continued unchallenged for such a length of time as to acquire the sanction of continued decisions over a very long period and there is therefore no principle which will preclude this court from correcting the error.
See William Hamilton and John Hamilton vs William Baker (1).
The Lancashire and Yorkshire Railway Company vs The Mayor, Alderman, and Burgesses of the Borough of Bury (2).
Pate vs Pate (3).
In another case Wilson vs Robertson (4) under the statute the duty was imposed on all goods "imported into or exported from Berwick harbour" which extended down the Tweed to the sea but no part of it extended above the bridge.
Goods were brought up the river in a sea going vessel which having first used rings and posts put up by the Harbour Commissioners in order to moor while lowering the masts, passed through Berwick Bridge, and unloaded her cargo about two hundred yards above the bridge and beyond the limits of the harbour.
It was held that goods were not " imported into " the harbour so as to make any dues payable in respect of them.
The argument raised there was that as there was no harbour down the Tweed except Berwick and though the goods were actually unloaded above the Berwick bridge and out of the limits of the harbour it was substantially imported into the harbour.
The vessel in that case was obliged to stop before passing the bridge and avail herself of the benefits of the machinery and works provided by the Commissioners and that was part of the means used towards the unloading of the vessel and it was argued that this would amount to import.
Lord Cambell C. J. said: " The argument on behalf of the plaintiff would be very pertinent if addressed to a Committee of the House of Commons in favour of making the harbour dues payable in such a case as the present.
We can, (1) , 220, 222.
(2) , 420.
(3) , 1108.
(4) (1855) 24 L. J. Q. B. 185.
1113 however, look only to what the legislature has enacted, in order to see whether this burthen is cast upon the defendants.
The dues are only to be paid upon goods imported into the harbour of Berwick, the limits of which are defined by the Act, and which does not extend above the bridge.
Now, has this iron been so imported ? It is admitted that, if it had been carried through the bridge to a port higher up the river, no dues would have been payable; and the plaintiff 's counsel by that admits himself out of court. . .
These observations support the submissions against the meaning of " export " or " import " being merely taking out of or bringing into.
Mersey Docks and Harbour Board vs Twigge (1) was a case of goods shipped from a foreign port under a through bill of lading to Liverpool, landed in London and sent from there to Liverpool in another ship and it was held that such goods were imported into Liverpool ports beyond the seas and not from London.
The transit began at Singapore and ended at Liverpool and was not broken by the transhipment in London.
By giving to the words " imported into or exported from " their derivative meaning without any reference to the ordinary connotation of these words as used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it appears from the setting, context and history of the clause was not intended.
The effect of the construction of " import " or " export " in the manner insisted upon by the respondent would make railborne goods passing through a railway station within the limits of a Municipality liable to the imposition of the tax on their arrival at the railway station or departure therefrom or both which would not only lead to inconvenience but confusion, and would also result in inordinate delays and unbearable burden on trade both inter State and intra State.
It is hardly likely that that was the intention of the legislature.
Such an interpretation would lead to absurdity which has, according to the rules of interpretation, to be avoided.
(1) 1114 Chief Justice Marshall dealing with the word " im portation " said in Brown vs State of Maryland (1): The practice of most commercial nations conforms to this idea.
Duties, according to that practice, are charged on those articles only which are intended for sale or consumption in the country.
Thus seastores, goods imported and re exported in the same vessel, goods landed and carried over land for the purpose of being re exported from some other port, goods forced in by stress of weather, and landed, but not for sale are exempted from the payment of duties.
The whole course of legislation on the subject shows that in the opinion of the legislature the right to sell is connected with the payment of the duties ".
Continuing the learned Chief Justice at p. 447 observed: "Sale is the object of importation, and is an essential ingredient of that intercourse, of which importation constitutes a part.
It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself. . . " This supports the contention raised that " import " is not merely the bringing into but comprises something more i.e. " incorporating and mixing up of the goods imported with the mass of the property " in the local area.
The concept of " import " as implying some.
thing brought for the purpose of sale or being kept is supported by the observations of Kelly C. B. in Harvey vs The, Mayor and Corporation of Lyme Regis (2).
There the claim for a toll was made under the Harbour Act and the words for construction were " goods landed or shipped within the same cobb or harbour Construing these words Kelly C. B. said: " The ordinary meaning and purport of the words is perfectly clear, namely, that tolls are to be paid on goods substantially imported; that is, in fact, carried into the port for the purpose of the town and neigh bourhood." Similarly the word " export " has reference to taking out of goods which had become part and parcel of the mass of the property of the local area and will not (1) ; , 442; ; , 686.
(2) ; , 262.
1115 apply to goods in transit i.e. brought into the area for the purpose of being transported out of it.
If the intention was to tax such goods then the word used should have been " re exported " which means to export (imported goods) again; Re exportation means the exportation of imported goods.
Even assuming that the words "imported into or " exported from " could be restricted only to their derivative meaning and thus construed to mean only "brought into or taken out or away from" this general meaning it was submitted by the appellant is qualified by the use of the prefix "terminal" used adjectively with the word " tax", which makes it necessary to determine the meaning of the term terminal tax ".
And the question then arises does it have reference to the jurisdictional limits of the Municipality or to the ultimate termination or the commencement of the journey of the goods as the case may be.
In dealing with this the High Court said: " It remains to consider what is signified by the word " terminal ".
It is obvious that it could refer either to the termini of the goods or the termini of the Municipality.
It is clear to me that the word " terminal " refers not to the destination or origin of the goods but to the termini of the Municipal limits.
Digby, J., pointed out that it refers to the traffic rather than the origin of the goods ".
According to the Oxford Dictionary " terminal means end, boundary ; situated at or forming the end or extremity of something; situated at the end of a line of railway; forming or belonging to, a railway terminus.
" Terminus " means the point to which motion or action tends, goal, end, finishing point; sometimes that from which it starts; starting point.
An end; extremity; the point at which something comes to an end.
In Corpus Juris Vol.
62 it is stated at p. 729 that terminal " in connection with transportation means inter alia " the fixed beginning or ending point of a given run 142 1116 if " terminal " besides the above meaning has an additional meaning also and that meaning signifies the termini or the jurisdictional limits of the municipal area even then the construction to be placed on the term should be the one that favours the tax payer, in accordance with the principle of construction of taxing statutes, which must be strictly construed and in case of doubt must be construed against the taxing authorities and doubt resolved in favour of the taxpayer.
In Crawford on Statutory Constructions in para.
257 at p. 504 the following passage pertaining to construction of taxing statutes taken from Bedford vs Johnson (1) is quoted: " Statutes levying taxes or duties upon citizens will not be extended by implication beyond the clear import of the language used, nor will their operation be enlarged so as to embrace matters not specifically pointed out, although standing upon a close analogy, and all questions of doubt will be resolved against the government and in favour of the citizen, and because burdens are not to be, imposed beyond what the statute expressly imparts".
In that case the court refused to regard automobile parking lots as falling within the scope of a statute which imposed a tax on general warehouse storage establishments.
On this principle the word " terminal " must in the context be construed as having reference to terminus and has to be read to connote the idea of the end of something connected with motion and not that of an intermediate stage of a journey.
It would be quite legitimate to examine the legislative history of these " terminal taxes " which would be a useful aid to construction of clause (o) of section 66(1).
In the last century a tax known as Octroi payable on the entry of goods in a local area for consumption, use or sale therein was introduced.
In 1920 an optional substitute called "terminal tax " came into existence by virtue of item 8 of Schedule 11 of the Scheduled Tax Rules framed under section 80 A (3)(a) of the Government (1) I02 COIO 203, 78 Pac (2) 373.
1117 of India Act, 1915 as amended in 1919.Item 8 was as follows: Item 8 "A terminal tax on goods imported into or exported from, a local area, save where such tax is first imposed in a local area in which a octroi was not levied on or before the 6th July, 1917.
" In the Government of India Act, 1935 this item was replaced by two items one dealing with " terminal tax " and the other with the right of a local area to impose tax on entry of goods into a local area.
The former was put in the Central List (List 1) and the latter in the Provincial List (List II).
(1) Item No. 58 in List I of Schedule 7 of the Constitution Act was: " Terminal taxes on goods or passengers carried by railway or air ; taxes on railway fares and freights" and (2) in the Provincial List another item was introduced item No. 49 which was as follows: " Cesses on the entry of goods into a local area for consumption, use or sale therein.
" The Constitution of India maintains this distinction in the Seventh Schedule and item No. 89 in List I corresponding to the above mentioned item No. 58 is "terminal taxes on goods or passengers, carried by railway, sea or air; taxes on railway fares and freights.
" In the State List the item No. 52 which is as follows : "Taxes on the entry of goods into a local area for consumption, use or sale therein and Item No. 56 is: " Taxes on goods and passengers carried by road or on inland waterways ".
The legislative history of this tax thus shows that octroi was leviable on the entry of goods in a local area when the goods were for consumption, use or sale therein.
The substituted tax was terminal tax on goods imported into or exported from a local area and by rules this tax in the case of Wardha Municipal Committee was imposed on certain class of goods imported and on others exported by railway or road.
In 1935 the terminal tax was made leviable on goods 1118 carried by railway or air but the tax on entry of goods was imposable on goods for consumption, use or sale in a local area.
Both these taxes have been continued by the Constitution.
If the pre 1920 octroi and the post 1935 cess or tax on entry of goods is payable on goods for consumption, use or sale, can it be said that the Constitution Act of 1915 as amended in 1919 or the Rules made thereunder intended to vary the nature of the tax by the introduction of item 8 in Sch.
II ,under the Scheduled Tax Rules i.e. the tax became leviable on entry of goods or on their being taken out without their acquiring the qualification of incorporation with the mass of property of the local area.
The presumption is against the imposition of new burdens.
In the absence of clear intention to the contrary the incidence of the tax leviable under item 8 of Sch.
II of the Schedule Tax Rules is incapable of having a different complexion from that which it had before 1920 or that which was clearly given after 1935.
It was said in U. section vs Fisher (1): "that it is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law., without expressing its intention with irrestible clearness. . . .
It is also a recognised principle of construction that general words and phrases however wide and comprehensive they may be in their literal sense must usually be construed as being limited to the actual objects of the Act.
There is no evidence that the actual object of the Act in the present case was to extend the powers of the Municipalities to imposing the tax on articles which were in the course of transit.
That by the substitution of terminal tax on goods imported into a local area the nature of the tax had not been altered from what it was when octroi was in force or when instead of " terminal tax " octroi (without refund, was substituted is clear from the decision of the Federal Court in Punjab Flour and General Mills ' case (2) which is discussed in a later part of (1) ; , 390; ; (2) 1119 this judgment.
Therefore terminal tax on goods imported or exported is similar in its incidence and is payable on goods on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit through the municipal limits and had their terminus elswhere.
The vires of the tax has not been assailed but the difference in the language of the two items in List I and II has been pressed before us for the purpose of showing that the word " terminal " implies the terminus of a journey and not the end of the jurisdictional limits of a Municipality.
Terminal in item No. 58 of List I of the 1935 Constitution Act has reference to the terminus of carriage of goods.
There is no reason to give to this word a different meaning in item No. 8 of Scheduled Tax Rules under the Government of India Act of 1915 or in clause (o) of section 66(1) of the Act.
The two sets of taxes in Lists I and 11 have different qualities.
The "terminal tax" under item No. 58 of List I arises at the end of journey by railway wherever the end may be in relation to particular goods ' and under item No. 49 of List 11 the tax or cess on entry of goods whatever the nomenclature is imposable when the goods enter a local area for consumption, use or sale therein.
The two sets of taxes are so distinct that they may be imposed simultaneously, one when they reach their destination at the end of a railway journey and the other when they enter the limits of a local area for the object above mentioned.
But in both cases the activity in regard to the motion of the goods ends, in the one case as the goods are carried no further by railway and in the other as their entry is for consumption, use or sale.
Keeping in view the terms and language and the legislative history of the section 66(1) we are unable to enlarge the terms of the section by mere construction so as to include within its operation goods which are in transit and are being transported across the jurisdictional limits of the Municipality.
The Federal Court in Punjab Flour and General Mills Co. Ltd. vs Chief Officer, Corporation of City of Lahore (1) considered the meaning of the word (1) 1120 " terminal" in a case which was brought from Lahore.
There the Municipality of Lahore imposed a terminal tax in 1926 calculated on the gross weight Of Consignments or per tail as the case might be, at the rates and on the articles specified in the schedule, imported into the Municipality by rail or by road.
By a notification of 1938 the Municipality in supersession of that tax imposed a new tax called "Octroi (without refund)" which was to be similarly calculated on the gross weightage of the consignments imported into the limits of the Municipality.
This in turn was replaced by the imposition of a new tax also called "Octroi (without refund)" on consignments imported into the limits of the Municipality.
The appellant 's contention in that case was that the tax imposed was a " terminal tax " on goods carried by railway and as such not imposable.
The Municipality argued on the other hand that it was a tax within the provisions of Entry No. 49 of List 11 and as such could be imposed with the previous sanction of the Provincial Government under section 61(2) of the Punjab Municipalities Act.
The following passage from the judgment of Spens C. J. shows the meaning to be attached to the word " terminal ": " There appears to us a definite distinction between the type of taxes referred to as terminal taxes in Entry No. 58 of List I of Sch. 7 and the type of taxes referred to as cesses on the entry of goods into a local area in Entry No. 49 of List II.
The former taxes must be (a) terminal (b) confined to goods and passengers carried by railway or air.
They must be chargeable at a rail or air terminus and be referrable to services (whether of carriage or otherwise) rendered or to be rendered by some rail or air transport Organisation.
The essential features of the cesses referred to in Entry No. 49 of List II are on the other hand simply (a) the entry of goods into a definite local area and (b) the requirement that the goods should enter for the purpose of consumption, use or sale therein. . . . . . . . . .
In our judgment there is no limitation to be implied in Entry No. 49, List II, in regard to the manner in which goods may be transported into a local area.
It follows 1121 that so far as rail borne goods are concerned the same goods may well be subjected to taxation under Entry No. 58 of List I as well to local taxation under Entry No. 49 of List II.
The grounds of taxation under the two entries are, as indicated above, radically different, and there is no case for suggesting that taxation under the one entry limits or interferes in any way with taxation under the other." Therefore according to the Federal Court " terminal" has reference to the terminus of the railway or air i.e., the end of journey.
The tax imposed in that case was held not to be a terminal tax but merely a cess on entry of goods into the local area within Entry No. 49 of List II even though it was imposed on railborne goods entering the municipal area.
It is a noticeable feature of section 66(1) that apart from the terminal tax there are 14 other heads of taxation imposable by the Municipality and in the case of each one of these 14 heads the tax is on some activity which takes place within the jurisdictional limits of the Municipality.
This supports the contention of the appellant that the terminal tax leviable under cl.
(o) properly construed must have reference to some activity within the municipal area i.e., the entry for the purpose of remaining within that area or commencement of journey from that area.
We are, therefore, of the opinion that the terminal tax under section 66(1)(o) is not leviable on goods which are in transit and are only carried across the limits of the Municipality, and would therefore allow this appeal, reverse the decision of the Nagpur High Court.
The appellant will have its costs in this court and in the High Court.
Appeal allowed.

dataset_name: IN-Abs

summary:
Section 66(1)(0) of the C. P. and Berar Municipalities Act, 1922, empowered the municipalities to impose "a terminal tax on goods or animals imported into or exported from the limits of a municipality".
The respondent framed rules for the imposition of terminal tax.
The appellant transported bales of cotton from Yeotmal to Nagpur by road and the vehicles carrying the goods passed through the limits of respondent municipality.
The goods were neither unloaded nor reloaded at Wardha bat were merely carried across through the municipal area.
The respondent collected terminal tax on these goods on the ground that they were exported by the appellant from the limits of the respondent municipality.
The appellant disputed his liability to pay terminal tax, and claimed a refund : Held, that the goods which were in transit and were merely carried across the limits of the municipality were not liable to terminal tax.
Terminal tax on goods imported into or exported 1103 from the limits of a municipality was payable on goods on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit and had their terminus elsewhere.
Terminal tax leviable under section 66(1)(o) must have reference to some activity within the municipal area i.e., the entry for the purpose of remaining within that area or the commencement of the journey from that area.
The words "imported into" do not merely mean "bringing into"but comprise something more i.e., incorporating and mixing up of the goods with the mass of the property in the local area.
Similarly, the words "exported from" do not merely indicate, "taking out" but have reference to the taking out of goods which ' had become part and parcel of the mass of the property of the local area and will not apply to goods in transit i.e. brought into the area for the purpose of being transported out of it.


judgement:
N: Criminal Appeal Nos.
106 107 of 1986.
WITH (Criminal Appeal Nos. 166 67/1986).
From the Judgment and order dated 5.9.1985 of the High Court of Rajasthan in D.B. Appeal No. 126/77 and Criminal Appeal Nos. 98 and 99 of 1977.
R.L. Kohli, Uma Dutt and R.C. Kohli for the Appellant.
B.D. Sharma and M.I. Khan Additional Advocate General for the Respondent.
The Judgment of the Court was delivered by OZA, J.
These two appeals arise out of the conviction of these two appellants alongwith one another under Section 302 read with Section 34 and sentenced to imprisonment for life and fine of Rs. 100 each in Sessions Case No. 39/75 by Sessions Judge, Jhunjhunu dated 601 29th January 1977.
Alongwith these two appellants Chandan and Om Prakash one Babulal son of Onkar Mal was also convicted but we have no appeal before us on behalf of Babulal.
The prosecution case was that Smt.
Dhaka widow of Shri Hanuman Prasad and mother of Shri Gyarsi Lal was living all alone in her house (Haveli) at Ward No. 1, Khetadi.
In the morning of 23rd August, 1975 a person engaged for grazing the goats in jungle went to Smt.
Dhaka 's house for taking her goats for grazing and called Smt.
Dhaka but he did not get any response.
P.W. 2 Smt.
Banarsi who was living in the vicinity came on the spot and alongwith the Goatmen went inside the Haveli.
They found goods scattered here and there and even when they loudly called Smt.
Dhaka they did not hear any reply.
P.W. 1 Matadeen who was feeding pigeons nearby was informed by Smt.
Banarsi that Smt.
Dhaka normally used to get up early but it appears that she had not woken up by that time and therefore expressed surprise.
On this Matadeen went inside the house, reached the upper floor and found all the rooms opened and plenty of goods of Smt.
Dhaka lying scattered.
There he saw Smt.
Dhaka Iying on a cot and found that she was wounded and bleeding at number of places.
Shri Matadeen, then went to the Police Station, Khetadi and submitted his report exhibit P. 1.
The Station House officer Surindra Singh reached the spot, prepared a memo and carried out the investigation.
On 3rd September, 1975 one Mam Chand was arrested as an accused.
Another accused Babulal was arrested on 5th September and the acquitted accused Laxmikant was arrested on 7th September and the two appellants in this appeal Om Prakash and Chandan were arrested on 11th September, 1975.
Mam Chand later was granted pardon and has been examined as an approver in this case.
On trial the learned Sessions Judge convicted all the accused persons and on appeal the High Court acquitted the accused Laxmikant but maintained the conviction against the three and aggrieved by the judgment of the High Court the present appeal on special leave has been filed before us by the two appellants mentioned above.
It is not in dispute that there is no direct evidence in this case.
The only evidence is the evidence of the approver Mam Chand and other evidence regarding recovery of articles.
Learned counsel for the appellant contended that certain articles were recovered at the instance of Om Prakash and were put up for test identification and according to the evidence of the test identification these articles that were put up for identification, four witnesses were supposed to identify.
Four witnesses appeared at test identification but three appeared in the 602 Court at trial.
Out of these four witnesses, the first witness did not identify any article.
The two witnesses Rameshwar and Phool Chand, P.Ws 13 and 14 did identify some articles.
Their evidence after consideration has been rejected by the trial court and the other witness who identified the articles was Gyarsi Lal who happens to be the son of deceased, for the reasons best known, has not been examined at the trial at all and it was therefore contended by the learned counsel that so far as the recovery and identification of articles are concerned no article recovered has been identified to be that of the deceased and therefore this evidence of recovery in absence of identification is not at all relevant for the prosecution.
He therefore contended that as it is settled law that accomplice 's evidence if it inspires confidence could be used to convict the accused person only if there is independent corroboration which could connect the accused with the crime and it was contended that this evidence of recovery and identification was supposed to be the evidence connecting the accused with the crime and corroborating the testimony of the approver but the learned Judges of the High Court did not consider this aspect of the matter that the two witnesses who had identified some articles their testimony has been discarded by the trial court and the High Court has not come to the conclusion that the trial court was not right in rejecting their testimony but superficially held that the evidence of identification is sufficient to corroborate the testimony of the approver.
It was also contended that even the reading of the testimony of the approver shows that he has tried to keep himself away and the manner in which he has described the whole incident and the way in which he was taken into confidence by the other accused persons make his testimony unnatural and therefore could not be accepted.
Learned counsel also placed reliance on certain decisions of this Court where the rule of prudence about the testimony of the accomplice has been repeatedly stated.
Learned counsel appearing for the State of Rajasthan admitted that so far as the identification evidence is concerned, the most important witness Gyarsi Lal has not been examined at the trial and the other two who were examined, their testimony has been rejected but he attempted to contend that although Gyarsi Lal has not been examined in evidence at the trial but in test identification he had identified articles and therefore that evidence is sufficient to corroborate the testimony of the accomplice.
He however did not challenge the proposition that the conviction could not be maintained on the sole testimony of the accomplice unless it is corroborated by some independent evidence connecting the accused with the crime.
603 So far as the question about the conviction based on the testimony of the accomplice is concerned the law is settled and it is established as a rule of prudence that the testimony of accomplice if it is thought reliable as a whole conviction could only be based if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime.
In Haroon Haji Abdulla vs State of Maharashtra, [ ; it was observed as under: "An accomplice is a competent witness and his evidence could be accepted and a conviction based on it if there is nothing significant to reject it as false.
But the rule of prudence, ingrained in the consideration of accomplice evidence, requires independent corroborative evidence first of the offence and next connecting the accused against whom the accomplice evidence is used, with the crime".
Similarly in Ravinder Singh vs State of Haryana, [ ; it was observed as under: "An approver is a most unworthy friend, if at all, and he.
having bargained for his immunity, must prove his worthiness for credibility in court.
This test is fulfilled, firstly if the story he relates involves him in the crime and appears intrinsically to be a natural and probable catalogue of events that had taken place.
The story if given of minute details according with reality is likely to save it from being rejected brevi manu.
Secondly, once that hurdle is crossed, the story given by an approver so far as the accused on trial is concerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt.
In a rare case taking into consideration all the factors circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the court may be permissible.
Ordinarily, however, an approver 's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal.
Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of other independent credible evidence, would give the needed assurance for acceptance of his testimony on which a conviction may be based.
" 604 In this decision the first test indicated is that if the story given out by the accomplice appears intrinsically to be natural and probable, then alone that evidence could be of some value and then it is further observed that ordinarily an approver 's statement has to be corroborated.
In this view of the settled legal position which was not disputed before us, it was contended that the evidence about recovery is of no consequence as there is no evidence of identification but as it was contended by the learned counsel for the respondent State that Gyarsi Lal who is the son of the deceased is not examined at the trial but he had identified articles at the identification parade and the learned counsel attempted to contend that this evidence could be used as a piece of corroboration.
Unfortunately this evidence could not be looked into because: i) what he identified and stated to the Magistrate who conducted the identification parade is only a hearsay evidence as that evidence could only be used to corroborate his testimony if he was examined at the trial; and ii) what he stated to the Magistrate at the time of the test identification parade is not subjected to cross examination and was at the back of the accused could not be used as evidence against the accused.
These are matters so settled and therefore it is sufficient to say that this contention is without any substance.
Except this even the learned counsel for the State of Rajasthan had to concede that there is nothing about identification or anything to connect these articles with the crime and in such a situation the evidence of recovery is not at all relevant as it is not connected with the crime.
It is not disputed that except this we are left with the only evidence of the approver Mam Chand.
His evidence has been read by the counsel for the parties before us and his evidence clearly indicates that he has attempted to suggest that he did nothing.
Neither he stated that he participated in looting nor in injuring or attacking the deceased.
Reading through his evidence clearly indicates that he has claimed to be a spectator at every moment but has not participated at any stage.
Apart from it the initial story appears also to be absolutely unnatural as according to him, he did not know anyone of these accused persons but a month before the incident they took him into confidence and told him to join them.
After reading the evidence of the witnesses as a whole apparently the impression created is that the version does not appear to be natural version.
In this view of the matter, in our opinion, the testimony is not such which inspires confidence.
Apart from it as there is no corroboration at all from any other independent circumstance or source of evidence therefore the conviction of the appellants could not be maintained.
It is rather unfortunate that the appeal has come up for hearing after a long time and ultimately it is found that 605 there is no evidence to sustain the conviction.
The appeals are there A fore allowed.
The sentence and conviction passed against both the accused are set aside.
The appellants shall be set at liberty forthwith.
P.S.S. P.S.S. Appeals allowed.

summary:
% Five persons were tried for the murder of a widow, out of which one turned approver.
There was no direct evidence in the case.
The only evidence was the evidence of the approver and the other evidence regarding recovery of articles by three witnesses.
The trial court discarded the testimony of two witnesses who had identified some articles.
The third witness, the son of the deceased and who had identified the articles was not examined at the trial.
The court, however, convicted all the accused persons under section 302 read with section 34 lPC.
The High Court maintained the conviction of three persons on the finding that the evidence of identification was sufficient to corroborate the testimony of the approver.
In the appeals by special leave by two of the accused, it was contended for the State that although the son of the deceased had not been examined at the trial, he had identified articles at the test identification and, therefore, that evidence was sufficient to corroborate the testimony of the accomplice.
Allowing the appeals, ^ HELD: It is established as a rule of prudence that the testimony of an accomplice if it is thought reliable as a whole conviction could only be based if it is corroborated by independent evidence either direct or circumstantial connecting the accused with the crime.
[603A B] Haroon Haji Abdulla vs State of Maharashtra, ; and Ravinder Singh vs State of Haryana, ; referred to.
In the instant case, the evidence of the son of the deceased could 600 not be looked into because (i) what he identified and stated to the Magistrate, who conducted the identification parade, was only a hearsay evidence and that evidence could only be used to corroborate his testimony if he was examined at the trial, and (ii) what he stated to the Magistrate was not subjected to cross examination and was at the back of the accused.
Further, there is nothing about identification or anything to connect the articles with the crime and in such a situation the evidence of recovery is not at all relevant as it is not connected with the crime.
It could not, therefore, be used as evidence against the accused.
[604C D] The only evidence against the accused was that of the approver.
He has claimed to be a spectator at every moment but has not participated at any stage.
Apart from it, the initial story appears also to be absolutely unnatural, as according to him he did not know anyone of the accused persons but a month before the incident they took him into confidence and told him to join them.
The evidence of the witnesses as a whole does not appear to be natural version and is not such which inspires confidence.
Moreover, there was no corroboration at all from another independent circumstance or source of evidence.
The conviction of the appellant, therefore, could not be maintained.
[604F H]