judgement:
l Appeal No. 1827 of 1967.
Appeal by special leave from the judgment and order dated the '29th April 1966 of the Rajasthan High Court at Jodhpur in D. B. ,Civil Regular First Appeal No. 57.
U. N. Trivedi and Ganpat Rai, for the Appellants.
Sobhagmal Jain, for the respondent.
The Judgment of the court was delivered by MATHEW, J.
This is an appeal by special leave against the judgment and decree of the High Court of Rajasthan, setting aside decree for recovery of damages under the Patel Accidents Act, 1855 hereinafter referred to as the 551 Navneetlal was a resident of Udaipur.
He was in the employment of the State of Rajasthan and was, at the material time, working in the office of the Executive Engineer, Public Works Department, Bhilwara as a Store Keeper.
In connection with the famine relief works undertaken by the department he was required to proceed to Banswara.
For that purpose he boarded truck No. RJE 131 owned by the department from Bhilwara on May 19, 1952 and reached Chittorgarh in the evening.
Besides himself, there were Fateh Singh Fundilal and Heera Singh, the driver, cleaner and a stranger in the truck.
On May 20, 1952, they resumed the journey from Chittorgarh at about 11 A. M. and reached Pratapgarh in the same evening.
The truck started from Pratapgarh to Banswara at about 10 A.M. on May 21, 1952.
After having travelled for 4 miles from Pratapgarb, the engine of the truck caught fire.
As soon as the fire was seen the driver cautioned the occupants to jump out of the truck.
Consequently, Navneetlal and the other persons jumped out of the truck.
While doing so, Navneetlal struck against a stone lying by the side of the road and died instantaneously.
Parwati Devilwidow of Navneetlal brought a suit against the State of Rajasthan for damages under the provisions of the Act, The plaintiff alleged that it was on account of the negligence of the driver of the truck that a truck which was not road worthy was put on the road and that it caught, fire which led to the death of Navneetlal and that the State was liable for the negligence of its employees in the course of his employment.
The plaint also alleged that the decreased had left behind him his widow, , namely, the plaintiff, two minor sons,one minor daughter and his parents.
The plaintiff claimed damages to the tune of Rs. 20,000./ and prayed for a decree for that amount.
The State contended that the truck was quite in order when it started from Bhilwara and even when it started from Pratapgarh to Banswara and that if it developed some mechanical troubles suddenly which resulted in its catching fire, the defendant was not liable as there was no negligence the part of the driver.
The trial court found that the act of the driver in putting the truck on the road was negligent as the truck was not roadworthy and since the driver was negligent, the, State was vicariously liable for his act.
The Court assessed the damages at Rs. 14,760/ and granted a decree for the amount to this plaintiff.
It was against this decree that the State appealed to the High Court.
The High Court came to the conclusion that the plaintiff had not proved by evidence that the driver was negligent, that the mere fact that the truck caught fire was not evidence of negligence on his part and that the maxim res ipsa loquitur had no application.
The Court said that the truck travelled safely from Bhilwara to Pratapgarh and that the engine caught fire after having 552 travelled a distance of 4 miles from Pratapgarh and that there was nothing on record to show that the engine of the truck was in any way defective or that it was not functioning properly.
The Court was of the view that the mechanism of an automobile engine is such that with all proper and careful handling it can go wrong while it is on the road for reasons which it might be difficult for a driver to explain.
The Court then discussed the evidence and came to the conclusion that no inference of negligence on the part of the driver was possible on the basis that the engine of the truck got heated of and on and that water was put in the radiator frequently, or that it took considerably long time to cover the distance between Bhilwara and Chittorgarh and that between Chittorgarh and Pratapgarh.
The High Court therefore, allowed the appeal.
The main point for consideration in this appeal is, whether the fact that the truck caught fire is evidence of negligence on the part of the driver in the course of his employment.
The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant.
The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering damage,,, if the proper inference to in drawn from the circumstances which are known is that it was caused by the negligence of the defendant.
The fact of the accident may, sometimes, constitute evidence of negligence and then the maxim res ipsa loquitur applies.
The maxim is stated in its classic form by Erle, C. J. " Where the thing is to shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
" The maxim does not embody any rule of substantive law nor a rule of evidence.
It is perhaps not a rule of any kind but simply the caption to an argument on the evidence.
Lord Shaw remarked that if the phrase had not been in Latin nobody would have called it a principle (2).
The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebutting from the defendant, without having to allege and prove any specific act or omission on the part of the defendant.
The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the dependent responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant.
But though the parties ' relative access to evidence is an influential factor, it is not controlling.
Thus the fact that (1) See SCOtt vs London St. Katherine Docks ; , 601.
(2) See Ballard vs North British Railway Co. 1923 section C. (H.L.) 43.
553 the defendant is as much at a loss to explain the accident or himself died in it, does not preclude an adverse inference against him if the odds otherwise point to his negligence (see John G. Fleming, The Law of Torts, 4th ed., p. 264).
The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes.
The maxim is based on common sense and its purpose is to do justice when the facts bearing on the causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant (see Barkway vs section Wales Transport(1).
The plaintiff merely proves a result, not any particular act or.
omission producing the result.
If the result in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply, and the plaintiff Will be entitled to succeed unless the defendant by evidence rebuts that probability.
The answer needed by the defendant to meet the plaintiff Is case may take alternative forms.
Firstly, it may consist in a positive explanation by the defendant of how the accident did in fact occur of such a kind as to exonerate the defendant from any charge of negligence.
It should be noticed that the defendant does not advance his case inventing fanciful theories, unsupported by evidence, of how the event might have occurred.
The whole inquiry is concerned with probabilities and facts are required, not mere conjecture unsupported by facts.
As Lord Macmillan said in his dissenting judgment in Jones vs Great Western (2) "The dividing line between conjecture and inference is often a very difficult one to draw.
A conjecture may be plausible, but it is of no legal value, for it sessense is that it is a mere guess.
An inference, inthe, legalsense, on the other hand,is a deduction from the evidence, and if it is are a sonable deduction it may have the validity of legal proof.
The attribution of an occurrence to a cause is, I take it, always a matter of inference.
The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability.
Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved.
" In other words, an inference is a deduction from established facts.and an assumption or a guess is something quite different but not necessarily related to established facts.
(1) [1950] 1 All England Reports 392, 399.
7 M 45 Sup CI/75 (2) 554 Alternatively, in those instances where the defendant is unable to explain the accident, it is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm.
Res ipsa loquitur is an immensely important vehicle for importing strict liability into negligence cases.
In practice, there are many cases where res ipssa loquitur is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular cause of the injury was not associated with negligence on his part.
Industrial and traffic accidents and injuries caused by defective merchandise are so frequently of this type that the theoretical limitations of the maxim are quite overshadowed by its practical significance (1).
Over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs.
Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices of our age less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance (see John, G. Fleming, The Law of Torts,4th ed., p. 260).
We are inclined to think the learned District Judge was correct in inferring negligence on the part of the driver.
Generally speaking, an ordinary road worthy vehicle would not catch fire.
We think that the driver was negligent in putting the vehicle on the road.
From the evidence it is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of the journey.
The vehicle, took 9 hours to cover the distance of 70 miles between Chittorgarh and Pratapgarh.
The fact that normally a motor vehicle would not catch fire if its mechanism is in order would indicate that there v as some defect in it.
The District Judge found on the basis of the evidence of the witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara.
It is clear that the driver was in the, management of the vehicle and the accident is such that it does not happen in the ordinary course of things.
There is no evidence as to how the truck caught fire.
There was no explanation by the defendant about it.
It was a matter within the exclusive knowledge of the defendant.
It was not possible for the plaintiff to give any evidence as to the cause of the accident.
In these circumstances, we think that the maxim res ipsa loquitur is attracted.
It was, however, argued on behalf of the respondent that the State was engaged in performing a function appertaining to its character as sovereign.
as the driver was acting in the course of his employment in connection with famine relief work and therefore, even if the driver (1) See Millner : "Negligence in Modern Law".
555 was negligent, the State would not be liable for damages.
Reliance was placed on the ruling of this Court in Kasturilal Ralia Ram Jain vs State of Uttar Pradesh (1) where this Court said that the liability of the State for a tort committed by its servant in the course of his emp loyment would depend upon the question whether the employ ment was of the category which could claim the special characteristic of sovereign power.
We do not pause to consider the question whether the immunity of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justification today.
Its historic and jurisprudential support lies in the oftquoted words of Blackstone(2) : "The king can do no wrong.
The king, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing : in him is no folly or weakness".
In modern times, the chief proponent of the sovereign immunity doctrine has been Mr. Justice Holmes who, in 1907, declared for a unanimous Supreme Court(3) : "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.
" Today hardly anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical.
We do not also think it necessary to consider whether there is any rational dividing line between the so called sovereign and proprietary or commercial functions for determining the liability of the State.
We are of the view that, as the law stands today, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood.
It is a work which can be and is being undertaken by private individuals.
There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.
In the view we have taken on the merits of the case, we do not think it necessary to canvass the correctness of the view expressed by the High Court that the appeal by the State before the High Court did not abate even though the legal representatives of the plaintiff respondent there were not impleaded within the period of limitation.
In the result, we set aside the decree of the High Court, restore the decree and judgment passed by the District Judge and allow the appeal with costs.
S.B.W. (1) ; (2) Blackstone, Commentaries (10th ed., 1887) (3) Kawananaka V. Polyblank, ; , 353.
Appeal allowed.

summary:
The deceased, who was at the material time in the employment of the State of Rajasthan in the Public Department, was required to proceed from his office at Bhilwara to Banswara, in connection with famine relief work undertaken by the department.
For that purpose, he boarded a truck owned by the department from Bhilwara on May 19, 1952 with six others.
Throughout the journey the radiator of the truck was getting heated frequently and the driver was pouring water into it after every 6 or 7 miles of journey.
The truck took nine hours to travel the distance or seventy miles.
After having travelled four miles from Peragraph, the engine of the truck caught fire.
As soon as the fire was seen, the driver cautioned the occupants to jump out of the truck.
Consequently, they did so, The deceased struck against a stone lying by the side of the road and died instantaneously.
The widow of the deceased brought a suit for damages against the State of Rajasthan under the provisions of the Act.
The plaintiff alleged, inter alia, that it was on account of the negligence of the driver of the truck that a truck which was notroad worthy was put on the road and that it caught fire which led to the death of her husband and that the State was liable for the negligence of its employee in the course of his employment.
The plaint also alleged that the deceased had left behind him his widow namely, the plaintiff, two minor sons, one minor daughter and his parents.
The plaintiff claimed damages to the tune of Rs. 20,000/ and prayed for a decree for that amount.
The state resisted the claim denying negligence of the driver and pleading sovereign immunity.
The trial Court relied on the maxim res ipsa loquitur, found that in putting the truck on the road the driver was negligent as the truck was not road worthy and since the driver was negligent, it held that the State was vicariously liable for his act.
The court assessed the damages at Rs. 14,760/ and granted a decree for the amount to the plaintiff.
Against this decree the state appealed to the High Court on the evidence on record, the High Court held that the principle of res ipsa loquitur had no, application to the facts of the case.
Accordingly, the High Court allowed the appeal.
On appeal by special leave to this Court.
HELD : (1) Generally speaking an ordinary road worthy vehicle would not catch fire.
The driver was negligent in putting the vehicle on the road.
From the evidence, it is clear that the radiator was getting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of journey.
The vehicle took 9 hours to cover the distance of 70 miles between Chittorgarh and Paragraph The fact that normally a motor vehicle would not catch fire if its mechanism is in order would indicate that there was some defect in it.
The Distt.
Judge found on the basis of evidence of witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara.
[554D F] It is clear that the driver was in management of the vehicle and the accident is such that it does not happen in the ordinary course of things.
There is no evidence as to how the truck caught fire.
There was no explanation by the defendant about it. ' It was a matter within the exclusive knowledge of the defendant.
It was not, possible for the plaintiff to give any evidence as to the cause of the accident.
these circumstances, the maxim ipsa loquitur is attracted.
[514F G] 550 The maxim does not embody many rule of substantive law nor a rule of evidence.
It is perhaps not a rule of any kind but simply a caption to an arguments on the evidence.
The maxim is only a convenient label to apply to a set of circums tances, in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege any specific act or omission on the part of the defendant.
Its principal function is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and 'the dependent responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant.
The maxim is based on commonsense and its purpose is to do justice when the facts bearing on causation and on care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant.
[k52F 553 C] The plaintiff merely proves a result, not any particular act or omission producing the result.
If the result, in circumstances which he proves it makes it more probable than not that it was caused by the negligence of the defendant, the doctrine of res ipsa loquacious is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability.
Res display loquitur is an immensely important vehicle for importing strict liability into negligence cases.[583 C D, 584 F] Scott.
vs London & St. Catherine Docks ; , 601, (1923) section C. (HL) 43, Barkway vs South Wales Transport [1950]1 All E.R. 392, Jones vs Great Western, , referred to.
(11)As the law stands today, it is not possible to say that famine relief work is :.it sovereign function of the State as it has been traditionally understood.
It is a work which can be and is being undertaken by private individuals.
There is nothing ,peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.
[555 E F] Kasturilal vs State of Uttar Pradesh [1965] 1 S.C,.
R. 375, referred to.
Quaere : (a) Whether the Immunity of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justification today; (b) whether there is any rational dividing line between the so called sovereign and proprietary commercial functions for determining the liability of the state.
1555 B C, E] Sensable : The modern sovereign immunity doctrine which is based on the ground that there can be no legal right as against the authority that makes the law on which the right depends, for exempting the sovereign from suit is neither logical nor practical.
[555 D E].


judgement:
Appeal No. 1817 of 1967.
From the judgment and Decree dated the 21st September 1965 of the Andhra Pradesh High Court in A.S. No. 508 of 1959.
K. R. Choudhury and Veena Khanna, for the appellants.
M. K. Ramamurthi and J. Ramamurthi, for the respondent.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
Venkanna, the father of the appellants, had a brother Ramamurti who died childless in the year 1908 leaving behind him his widow Narasimham.
After Ramamurti 's death a series of litigations started between Venkanna and Narasimham and it is not over yet.
Venkanna filed O.S. No. 14 of 1913 against the widow in respect of acts of waste committed by her of Ramamurti 's estate and was appointed a receiver in that suit.
In that suit he got a decree against Narasimham for a sum of Rs.13,539/ as she failed to furnish security as originally decreed by the court.
Venkanna as receiver filed three suits on the foot of three mortgages in favour of Ramamurti.
One was O. section No. 34 of 1916.
In execution of that decree item 1 of the 'A ' Schedule properties was purchased in court auction.
O.S. No. 443 of 1918 was filed on the, foot of another mortgage in favour of Ramamurti executed in 1904 and items 2 and 5 of the plaint schedule properties were purchased in execution of decree in that suit.
These three items of properties are the subject matter of this appeal.
It is unnecessary for the purpose of this appeal to refer to the third suit.
Venkanna died in 1947 and Narasimham in 1951 after executing a will bequeathing in favour of her brother Venkata Sattayya all her properties.
Venkata Sattayya filed the suit, out of which this appeal arises, for possession of the properties bequeathed to him under the will and for mesne profits.
The Subordinate Judge who tried the suit held that items 1, 2 and 5 become accretions to the main estate of Ramamurti and therefore the plaintiff was entitled only to an account of the income from those properties till the death of Venkanna.
The appeal against the Subordinate Judge 's judgment came up for hearing before Justice Satyanarayana Raju and Justice Venkatesam of the Andhra Pradesh High Court.
The learned Judges called for a finding with regard to the interest on the two mortgages in execution of the decrees in which items 1, 2 and 5 had been purchased, relating to *he period before Ramamurti 's death and the period after Ramamurti 's death.
After that finding was received they allowed the appeal in part and held that the plaintiff would be entitled to a 19/34th share of item 1, and 12/23rd share of items 2 and 5.
This appeal is filed in pursuance of a certificate granted by the High Court.
Mr. Ramasesneya Chaudhri appearing on behalf of the appellants raised four points which we shall deal with seriatim.
The learned Judges of the High Court committed an error in confining the appeal after receipt of the finding from the Subordinate Judge 's court only to the question of the share, which the appellants ,and the respondent were entitled to, based on the calculation of the 597 interest due on the mortgages before and after the death of Ramamurti.
His contention was that as the High Court had merely framed issues and referred them for trial to the court of first instance under Order XLI Rule 25 of the Code of Civil Procedure and not remanded the whole case under Order XII Rule 23, they should have heard the whole appeal and not confined the hearing merely to the points on which the finding was called for.
We think that he is right in this contention.
Before the High Court the learned advocate for the appellants had contended that Narasimham owed to the estate of Ramamurti a sum of Rs.14,639/ and that when the decree was sought to be executed by Venkanna, Narasimham claimed that the account due to her by way of interest under the three mortgage bonds should be set off and that the execution could proceed only for the balance, that the set off claimed by Narasimham was actually allowed and that therefore she would not be entitled to any share in the properties purchased in execution of the decrees obtained on the foot of the mortgage bonds, in lieu of the interest claimed.
The learned Judges disallowed him from raising that question on the ground that it was not raised or argued at the time when the finding was called for on the issues framed by them, and that if it had been raised and accepted there would have been no need to call for a finding or at any rate the finding called for would have been different, and that the argument of the learned counsel impugned the correctness of the conclusions reached by the Court on the basis of which the findings were called for.
We consider that when a finding is called for on the basis of certain issues framed by the Appellate Court the appeal is not disposed of either in whole or in part.
Therefore, the parties cannot be barred from arguing the whole appeal after the findings are received from the court of first instance.
We find the same view taken in Gopi Nath Shukul vs Sat Narain Shukul (AIR 1923 Allahabad 384) where it was held that: "Where an appellate Court at the first hearing does not decide the case but merely remits certain specific issues, it is open to the Court before which the case ultimately comes to disregard the findings on those issues and equally to form its own opinion on the whole case irrespective of anything that is said in the remand order.
" It was also held that: "An order remanding issues under Rule 25 is not a final order.
No appeal lies against it.
The responsibility for the decree ultimately passed is entirely that of the Court before which the case comes after remand.
It is quite otherwise with an order of remand passed under order 41, Rule 23, for this is an order which does finally determine, subject to any right of appeal, the issues which it decides.
A similar view was taken by the Nagpur High Court in Sultan 598 Beg Al.
chunilal (AIR 1918 Nagpur 193).
In Abinash Chandra Bidyanidhi Bhattacharjee vs Dasarath Malo (XXXII (1927 28) Calcutta 'Weekly Notes 1233) it was sail: An order of remand made under Or. 41, r. 25 decides nothing.
The Court, either the same or as differently constituted, has jurisdiction, while finally hearing the appeal, to go back on the reasons given or views expressed in the order of remand and must do so when those appear erroneous.
" We are, therefore, of opinion that the High Court should have gone into this question and decided the matter, for if it turns out that the interest due on the two mortgages subsequent to the death of Ramamurti had been set off against the amount due to Venkanna in the decree obtained by him against Narasimham in O.S. 14 of 1913 there can be no question of Narasimham being entitled to any share in the properties purchased in court auction in execution of the decree in the two mortgages and her brother getting those properties by virtue of the will executed by her in his favour.
In the Trial Court the plaintiff 's contention was that these properties were purchased out of the accumulated interest on the mortgages and the defendants asserted that they were purchased out of the principal.
That Court dismissed the plaintiff 's claim on the ground that there was no proof of his allegations.
It was before the High Court apparently that the attempt to split the interest due on the mortgages into two portions, one before Ramamurti 's death and the other after, was made and accepted by the High Court.
It was on that basis that the High Court called for findings.
After the findings were received the appellants raised the question about the set off.
They raised the ,question before the Trial Court when it was considering the appor tionment of the interest but that Court felt it had no power to go into that question in view of the terms of the High Court 's order calling for the finding.
And the High Court refused to allow the appellants to raise that question, which as we have just held was not correct.
The decree in Venkanna 's suit appears to have directed payment of interest to Narasimham [Para III (c) of the plaint and judgment of the High Court, page 102 of the paper book].
We find that Venkanna had submitted accounts to the court in his capacity as receiver till 1940.
We have also evidence in this case that even When Venkanna died a sum of Rs.4,486/ was due.to him on the foot of the decree he obtained against Narasimham.
It is, therefore, highly unlikely that any amount due to Narasimham was not given credit to.
We find from the finding submitted by the Trial Court (Page 86 of the paper book) Narasimham claimed that the amounts due to her should be set off and execution should proceed only for the balance and from exhibit A 7 it would appear that the claim was allowed.
It seems therefore unlikely, taking the direction in the decree and the order evidenced by exhibit A 7 into account, that the interest due to Narasimham, was not 599 one of the items set off.
We do not want to express any final opinion on the point but are of opinion that in the circumstances the High Court should consider this aspect of the matter and dispose of the appeal afresh.
Out of about 16 acres comprised in item 1, 5 acres had been lost in revenue sale because of Narasimham 's failure to pay the land revenue on those lands.
It was urged before the High Court and it has been urged again before us that in allotting to the appellants a share of items 1, 2 and 5 these 5 acre , which were lost to the estate as a result of Narasimham 's negligence should be debited against her share in them.
We find ourselves unable to accept this contention just as the High Court, though they gave no reason for their conclusion.
Neither on principle nor on authority could the contention on behalf of the appellants be supported.
A Hindu widow is entitled to the full beneficial enjoyment of the estate.
So long as she is not guilty of willful waste, she ' is answerable to no one.
Her estate is not a life estate, because in certain circumstances she can give an absolute and complete title.
Nor is it in any sense an estate held in trust for reversions.
Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to no one.
She fully represents the estate, and, so long as she is alive, no one has any vested interests in the succession.
The limitations upon her estate are the very substance of its nature and not merely imposed upon her for the benefit of reversioners.
She is in no sense a trustee for those who may come after her.
She is not bound to save the income, nor to invest the principal.
If she makes savings, she can give them away as she likes.
During her lifetime she represents the whole in heritance and a decision in a suit by or against the widow as representing the estate is binding on the reversionary heirs.
It is the death of the female owner that opens the inheritance to the reversioners, and the one most nearly related at the time to the last full owner becomes entitled to possession.
In her lifetime, however, the reversionary right is a mere possibility or sues successions.
It cannot be predicted who would be the nearest reversioner at the time of her death.
It is, therefore, impossible for a reversioner to contend that for any loss which the estate might have sustained clue to the negligence on the part of the widow he should be compensated from out of the widow 's separate properties.
He is entitled to get only the property left on the date of the death of the widow.
The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate.
The reversioner 's right to institute a suit to prevent waste is a different matter.
If it could have been established that in having allowed some part of the properties to be sold in revenue sale she was guilty of willful waste if would have been a different matter.
It would still have been necessary for the nevermore to have instituted a suit on that basis.
It is doubtful whether such a suit can be instituted after her death.
In any case the necessary averments are not available in this suit.
We are, therefore, unable to accept this contention 3.
Another point urged before the High Court as well as before us was that the cost incurred by Venkanna in the suit and in the execution proceedings should have been taken into account in allocating 600 items 1, 2 and 5 between the appellants and the respondent.
The High Court took the view that as the income received by Venkanna and the amounts spent by him including the amounts spent for the suit and the execution proceeding were taken into account at the time of the settlement of the accounts and there was an executable decree in favour of Venkanna for a sum of Rs. 4,486/ as the amount due on settlement of account, and it was peon to Venkanna to realise the amount against the estate of Ramamurti in execution of the decree, it is not now open to the appellants to claim that these should be separated from the amount of the decree and should be added on to the amount of principal and interest accrued during the lifetime of Ramamurti.
We agree with this view.
Incidentally it should be noticed that the conclusion of the High Court on this point would seem to point to the same conclusion in respect of the first point.
Lastly, it was argued that Narasimham, the widow, had treated this property as accretion to the husband 's estate and therefore the appellants are entitled to the whole of the property.
The facts on the basis of which this contention is urged are : (a) When Narasimham 's life interest in the estate was sold in E.P. No. 93 of 1927 filed by Venkanna she did not question the legality of the sale on the ground that her interest in the property was not a life interest but was a full interest.
(b) In the order in E.A. 624 of 1935 passed by the Subordinate Judge, Visakhapatnam the widow treated items 1, 2 and 5 as part of the estate of her husband and she had also asserted therein that she had a right to enjoy the same as representative of his estate.
(c) Life interest in the A Schedule properties was &old in E.P. 28 of 1940 in execution of the decree in O.S. 14 of 1913 and the widow did not object to the sale on the ground that what was being sought to be sold was a life interest but that she was entitled to full interest.
We do not think anyone or all of these grounds are sufficient to establish that the widow had treated this property as accretion to the husband 's estate.
As observed by the Madras High Court in Akkanna vs Venkayya (I.L.R. "the acquirer of property presumably intends to retain dominion over it and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husband 's property, was at her absolute disposal.
In the case of property inherited from the husband, it is not by reason of her intention but by reason of the limited nature of a widow 's estate under the Hindu Law, that she has only a limited power of disposition.
But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income.
The mere fact that properties thus acquired by her are managed and en 601 joyed by her without any distinction, along with properties inherited from her husband, can in no way effect this presumption.
She is the sole and separate owner of the two sets of properties so long as she enjoys the same, and is absolutely entitled to the income derived from both sets of properties.
" The fact that she wanted possession of those properties or that when in execution of his decree Venkanna bought what he alleged was her life interest in the properties she did not object to it and assert that she had full interest does not affect this question.
It was to her advantage to keep quiet.
She was not there by estopped from contending that she had an ' absolute interest in the properties.
It should, more over, be remembered that the question that the items 2 and 5 may have to be divided as between the reversioners and the widow in proportion to the respective shares of the husband 's estate and the widow in that property was really a later development.
Before the Trial Court both parties proceeded on a different footing altogether as mentioned earlier.
The widow was all along doing everything to prevent her husband 's reversioners getting anything from the estate.
She had transferred quite a good part of it to her brother, which was what enabled the reversioner to file the suit against her for acts of waste.
She exhibited a very clear intention that whatever she possessed should go to her brother.
There is absolutely no room on the facts of this case to hold that she exhibited the least intention to treat the income from the husband 's estate as an accretion to that estate.
In the result the appeal is allowed and the judgment of the High Court set aside.
The High Court will dispose of the appeal afresh.
The costs of this appeal will abide and be provided in the fresh decree to be passed by the High Court.
C.M.P. No. 2016 of 1969 is dismissed.
S.C. Appeal allowed.

dataset_name: IN-Abs

summary:
V, the father of the appellants had a brother R who died childless leaving behind him his widow, N.
After R 's death a series of litigation started between V & N. V filed a suit in 1913 against R. for waste committed by her husband 's estate and was appointed a receiver in that suit.
In that suit, he got a decree, V as receiver filed 3 suits on the foot of 3 mortgages in favour of R.
In execution of the decrees, 3 valuable properties were purchased.
These three properties are the subject matter of the present appeal.
V died in 1947 and N in 1951 after executing a will bequeathing in favour of her brother S all her properties.
S filed the suit out of which this appeal arises, for pos session of the properties bequeathed to him under the will and for mesne profits.
The Sub judge held that the said properties became accretions to the main estate of R and therefore, the plaintiff was entitled only to an account of the income from these properties till the death of V.
On appeal, the High Court allowed the appeal in part.
Before this Court four points were raised by the appellants : (I) The High Court committed an err or in not hearing the whole appeal but confining the hearing merely to the points on which the finding was called for from the lower court.
(2) a portion of the properties which was lost to the estate due to N 's negligence of not paying the land revenue, should be debited against her share in them.
(3) the cost incurred by V in the suit and in the execution proceedings should have been taken into account in allocating the properties between the appellants and the respondents and (4) that the widow N, bad treated the properties as accretion to the husband 's estate and therefore, the appellants are entitled to the whole of the property.
Allowing the appeal, HELD : (1) When a finding is called for on the basis of certain issues framed by the Appellate Court, the appeal is not disposed of either in whole or in part.
Therefore the parties cannot be barred from arguing the whole appeal after the findings are received from the Court of first instance.
[597 E) Gopi Nath Shukul vs Sal Narain Shukul, A.I.R. 1923 Allahabad 384, referred to.
(2) A Hindu widow is entitled to the full beneficial enjoyment of the estate.
So long as she is not guilty of wilful waste, she is answerable to no one.
In her lifetime, the reversionary right is a mere possibility or spes successionis.
It cannot be predicted who would be the nearest reversioner at the time of her death.
It is, there , fore, impossible to contend that for any loss to the estate due to the negligence on the part of the widow, he should be compensated from out of the widow 's separate properties.
He is entitled only to the property left on the date of the death of the widow.
[599 C; FG] (3) The income received by V and the amounts spent for the suit and the execution proceeding were taken into account at the time of settlement of accounts and it was open to V to realise the excess amount from the estate of R.
It is not now open to the appellants to claim that these amounts should be separated from the amount of the decree and should be added to the amount of principal and interest accrued during the lifetime of R. [600 A C] (4) From the evidence, it is clear that the widow did not show any intention to treat the income from, the husband 's estate as an accretion to that estate.
[601D] Akkanna vs
Venkayya, I.L.R. , referred to.
The appeal was sent back to High Court for hearing afresh.


judgement:
iminal Appeal No. 213 of 1970.
Appeal by special leave from the judgment and order dated the 17th June, 1970 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No.258 of 1970.
726 Harbans Singh, for the appellant.
Nuruddin Ahmed and U. P. Singh, for the respondents.
The Judgment of the Court was delivered by BEG, J.
The State of Panjab ha contained special leave to appeal against the judgment of the High Court of Punjab and Haryana, acquitting the two respondents from charges under Sections 302 and 302/34 Indian Penal Code and under Sections 307/34 Indian.
Penal Code.
The Trial Court had convicted the respondents under each of these two sections and sentenced Hari Singh to death under Section 302 Indian Penal Code and Gian Singh to life imprisonment under sections 302/34 I.P.C., and it had sentenced both to six years rigorous imprisonment and to pay a fine of Rs. 2,000/ , and, in default of payment of fine, to undergo further rigorous imprisonment for two years under Sections 307/34 I.P.C.
The occurrence which gave rise to the prosecution of the two respondents together with two others, Milkiat Singh and Dalip Singh, who were acquitted by the Trial Court, took place during the night between 18th and 19th June, 1969.
The victims, Gian Singh, deceased, and his nephew, Zora Singh, P.W. 3, cultivated lands jointly with Bachan Singh, P.W. 5, his son Mukhtiar Singh, his two brothers Gian Singh and Sarwan Singh, and, Surjit Singh, P.W. 4, and Jagjit Singh, the brothers of Zora Singh and sons of Sarwan Singh.
All of them also lived together in village Dhandri Kalan.
The respondents and the acquitted accused persons are brothers who also lived in village Dhandri Kalan in District Ludhiana.
It is said that there had been a fight between Hari Singh, respondent, and Gian Singh deceased in 1968 which had been settled by the Panchayat.
In 1969, sometime before the occurrence, another incident is said to have taken place.
Jagjit Singh and Mukhtiar Singh, by show of force, were said to have carried away some "toori ' in a cart to their house against the wishes of Hari Singh, respondent, and another person in his company.
Un doubtedly, the motive disclosed was not be strong enough for a murderous assault of a rather brutal kind on Gian Singh and Zora Singh.
This, however, is immaterial if the alleged eye witnesses of the occurrence could be relied upon to establish the prosecution case.
The whole question before the Courts was whether the three alleged eye witnesses, Zora Singh, P.W. 3, and Surjit Singh, P.W. 4, and Bachan Singh, P.W. 5, who are related to each other and the victims, as stated above could be relied upon, when corroborated by other facts and circumstances which may appear in the case, to sustain the conviction, The prosecution case was that Gian Singh and Zora Singh had gone to their field for watering their sugarcane crop in it on the evening of 18th June, 1969.
At about 9 p.m. Bachan Singh, P.W. 5, and Surjit Singh, P.W. 4, are said to have carried the meals for Gian, Singh and Zora Singh, who were at their field situated about "100 karams ' (nearly 100 paces) away from their tubewell, which was, as is usual, lit up by electric light.
After that, Gian Singh and Zora Singh went to sleep a few feet from each other at their tubewell while Bachan Singh and Surjit Singh are said to have stayed on at the sugarcane 727 field nearby.
At about mid night, Zora Singh is said to have got up to urinate, and to have just laid himself down on his cot after urinating.
when he saw the respondents and Milkiat Singh and Dalip Singh Arrive.
with their weapons.
Hari Singh is said to have struck his kirpan on the neck of Gian Singh, deceased, and Milkiat Singh is said to have struck Zora Singh on the right arm with his Gandasa, whereupon Zora Singh raised an alarm.
All the four assailants then gave blows to the deceased and Zora Singh who had cried out: "Marditta Marditta".
Bachan Singh, P.W. 4, and Surjit Singh, P.W. 4, rushed to their, aid and alleged having seen the attack and the assailants running away.
They found Zora Singh unconscious when they came near him.
Gian Singh and Zora Singh were removed to a Hospital in Ludhiana, where Gian Singh died at 5.45 a.m.
The condition of Gian Singh, which was not such as to enable him to make a dying declaration, was described as follows "B.P. was not recordable.
Pulse 60/mt.
fuble, unconscious, Gasping cynotic.
Pupils constricted ', Reacting Slugishly to light.
There was 8"x4" wound on the left side of the neck cutting deep to the muscles.
The trachea was cut almost through and through and be was breathing through the hole of the trachea.
Hyoid bone was lying exposed in the wound.
Could not feel the left carotid artery.
No bleeding was present when patient was brought to the hospital".
Zora Singh who survived had the following injuries : 1.
An incised wound 3"x1/2"x2 1/2" on the inner side of left hand and was cutting the 5th and 4th matacarpals completely.
Incised wound 1/2"x 1/6"x flesh deep on the inner side of left wrist.
Incised wound.
5" x 1" x 2" deep on the outer side of left hand and was chopping off the thumb completely from the hand.
Incised wound 6"x1/4"x flesh deep back of left forearm lower part.
Incised wound 4" x 1" x 2" deep on the right side of the face and the middle of the lower part of the nose and was cutting it and the right side of the upper jaw partially.
Inside wound 3" X 1/2"X l 1/2" deep on the upper part of the back of right side of the neck and was cutting the, spine bone partially.
Incised wound 4"x 1"x 3" deep on the back of right elbow and was cutting the ulna bone completely and the forearm was hang ing just with a flesh.
" A First Information Report of this occurrence was lodged at 5.15 a.m. at Police Station Sadar, Ludhiana, at a distance of 7 miles from village Dhandri Kalan, disclosing offences punishable under Sections 307 and 326 Indian Penal Code only as Gian Singh was still alive, at 728 that time.
It was stated in the F.I.R. that the respondents were recognised and that two other unknown assailants, who were young Sikhs, could be identified if produced before the witnesses.
Surjit Singh, P.W. 4, the maker of the F.I.R., upon cross examination denied that he had been tutored to state that he could not identify the two of the assailants as they had their backs towards him.
He had stated in the F.I.R. that they were youngmen although Milkiat Singh, aged 53, and Dalip Singh, aged 46, years were not so young.
He had also stated there that he could identify the two youngmen thereby implying that he had seen them properly.
He had stated in his evidence that one or two bighas of sugarcane can be irrigated in an hour by their Tubewell.
Watering was said to have commenced at ' p.m. and Zora Singh, P.W. 3, had stated that only 4 bighas of the field had to be watered.
The High Court, therefore, did not think it likely that either Bachan Singh or Surjit Singh would still remain at the Sugarcane field or be awake at the time when the occurrence took place.
Moreover, the High Court thought that both Bachan Singh and Surjit Singh were too far away, at abount 100 karams, to be able to reach in time to see the occurrence.
Bachan Singh, P.W.5, had supported the statement of Surjit Singh, P.W.4, that he ran up to help the attacked persons after hearing Zora Singh Shouting: "Marditta Marditta".
He said that he saw the assailants from a distance of 15 karams.
He also said that Hari Singh was using his kirpan to attack and that the other assailants had used their gandasas.
On cross examination, this witness also stated that he could not recognise the companions of Hari Singh and Gian Singh as they had their backs towards him, although it was proved that he had stated before the Police that the unidentified persons were young Sikhs with Gandasas whom he could identify if produced before him.
The High Court had found some difficulty in getting over the statement of Zora Singh, P.W. 3.
It had observed that Zora Singh, aged only about 16 years, would have tried to run away as soon as he saw four assailants by electric light attacking Gian Singh only at a distance of 10 feet, if he was really awake.
It had also opened that he would have cried out earlier than the moment of time when he received the injury on his right arm if he was actually awake when the assault on Gian Singh, deceased, took place.
It was not disposed to rely upon the statement of Zora Singh that he was lying awake because he had got up to urinate 5 minutes before the occurrence as this appeared to it to be an improvement upon his previous statement.
Zora Singh, on cross examination, had explained that he had not stated this earlier as he was not questioned about it.
The High Court had doubted the veracity of Zora Singh because he disclaimed knowledge that Milkiat Singh and Dalip Singh were employed in the Air Force although their fields adjoined his own fields.
The High Court thought that it was likely that Zora Singh would have become unconscious after receiving injuries before he could recognise his assailants.
The High Court had also attached importance to the fact that no special report of the occurrence was proved to have been sent to a Magistrate.
It has considered the explanation that this was due to the fact that the F.I.R. disclosed only offences punishable under Sections 307 and 326 I.P.C. to be insuffi 729 cient to explain this omission.
After relying upon the State of Punjab(1) that the prcsecution must traverse the whole gap between "what may be true" and "what must be true" before a conviction could be recorded in a criminal case, the High Court had given the respondents the benefit of doubt and acquitted them.
The Trial Court, on the other hand, which had the additional advantage of seeing the witnesses depose in the witness box, was impressed by the evidence of the, three alleged eye witnesses and had convicted the respondents.
It had not relied upon the alleged recoveries by Hardit Singh, Sub Inspector, P.W.8, of a kirpan on 28th June, 1969, from a straw bin at a tube well at the instance of Hari Singh and a gandasa on the roof of a tubewell at the instance of Gian Singh.
Both the weapons were proved to be stained with human blood.
As the recovery was shown to have taken place 4 days after the arrest of the respondents, the Trial Court thought that it must have resulted from the use of 3rd degree methods during the interrogation of the accused.
The Trial Court had also considered it unsafe to rely upon the sole testimony &the Investigating Officer on this question when other witnesses of the. recovery were not produced for some unexplained reason.
The Trial Court, had, however, relied upon the circumstance that the respondents could not be found when searched in their village and could only be arrested several days later. 'The question raised before us is: should we, even if we do not entirely agree with the reasoning of the High Court, substitute our own views and reverse an order of acquittal Vaidyanatha Iyer(2) to point out that this Courts power of interference under Article 136 of the Constitution with Judgments of acquittal is not exercised on principles which are different from those adopted by it in dealing with convictions.
It is a principle, common to all criminal appeals by special leave, that this Court will retrain from substituting its own views about the appreciation of evidence if the judgment of the High Court is based on one of two alternative views each of which was reasonably open to the High Court to accept.
If, however, the High Court 's approach is vitiated by some basically errcneous apparent assumption or it adopts reasoning which, on the face of it, is unsound, it may become the duty of this Court, to prevent a miscarriage of justice, to interfere with an order whether it be of conviction or of acquittal.
In the case before us, the Trial Court, which had the additional advantage of seeing the witnesses depose in the witness box, had accepted the testimony of the three eye witnesses, despite the fact that they are relations of the victims.
It has been repeatedly held by this Court that the mere fact that a witness is related to the victim could not be a good enough ground for rejecting his testimony although it may be a ground for scrutinizing his evidence more critically and carefully where facts and circumstances disclose that only relations have been produced and others, presumably independent witnesses, who were available, were not produced.
In the.
instant case, there is no evidence that anyone (2) ; (1) ; 730 besides the witnesses produced had actually witnessed the attack upon Gian Singh and Zora Singh.
The High Court 's reasons for doubting the correctness of some of 'the statements of Surjit Singh, P.W. 4, and Bachan Singh, P.W. 5, as, for instance, that they had actually failed to recognise Milkiat Singh and Dalip Singh because they had their backs towards them when these very witnesses had asserted before the police that the two other parti cipants were youngmen who could be identified by them, if produced before them, are quite sound and reasonable.
If, however, a false implication was really intended and the F.I.R. was the result of some conspiracy, there was no reason to omit the names, of Milkiat Singh and Dalip Singh, the two brothers of the respondents, from the F.I.R. The prosecution had an explanation for this omission.
This was that Zora Singh, who had seen and recognised these two accused persons had become unconscious before their names could be communicated to 'Surjit Singh.
The High Court had itself accepted the evidence that Zora Singh had actually become unconscious.
In fact, it had gone to the extent of holding, that he must have become unconscious even before he recognised any of the assailants.
On the last mentioned point, we certainly do not find it, possible to accept the view adopted by the High Court.
It is in dealing with the evidence of Zora Singh, P.W. 3, that the High Court seems to us to have adopted a patently erroneous approach and to have given grounds which do not appear to us to be reasonably sustainable.
The High Court seems to have assumed that Zora Singh must have invented the story that he had got up to, urinate so that he may pose as an eye witness of the occurrence.
The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in :any particular respect.
The High Court, reversing this approach, seems to us to have assumed that witnesses are untruthful unless it is proved that they are telling the truth.
Witnesses, solemnly deposing on oath in the witness box during a trial upon a grave charge of murder, must be presumed to act with a full sense of responsibility of the consequences ,of what they state.
It may be that what they say is so very unlikely or unnatural or unreasonable that it is safer not to act upon it or even to disbelieve them.
The High Court bad no, doubt tried to show that this was the position with regard to the whole of the testimony of Zora .Singh.
But, we do not think that it was successful.
It is true that the statement of a witness that he had got up to urinate just before a murder was committed, so that he could witness the murder, looks suspicious.
But, the statement is not, for that reason necessarily untrue.
Again, if, as , the High Court believed, both Gian Singh and Zora Singh were attacked almost simultaneously, its view, that Zora Singh would have got up and Tun away or shouted earlier than he was attacked had he been really awake, is unreasonable.
Let us, however, assume, for the sake of argument, that the High Court 's guess is correct that Zora Singh was actually asleep when the 731 attack upon Gian Singh and the Zora, Singh. began.
Even then it would be quite unreasonable to and hold, as.
the, High Court.
did that Zora Singh must have become unconscious before he could see and recognise his assailants.
There was the fight of the electricity at the tubewell where Zora Singh lay on.
his bed whether asleep or awake.
Zora Singh must have necessarily got up at, least when he was, struck on the arm.
He could not have avoided seeing and then recognising his assailants, whom he knew very well before he became unconscious.
His account, that he was struck first on the arm and then hecried out, is corroborated by the fact that other injuries indicate that.
his face and jaw were aimed at and struck probably in an attempt.
to silence him.
The injuries were of such a nature that he must have been awakened, shouted, writhed in pain., and seen the assailants before he became unconscious.
The absolutely unacceptable guess work indulged in by the High Court, that Zora Singh must have become unconscious before he could see and recognise his assailants, is utterly unsupported by evidence and seems very unreasonable.
Even if other parts of his evidence are, for some reason, not accepted, Zora Singhs statement that he saw and recognised assailants, before, he became unconscious cannot be held to be capable of arousing doubts.
There is no evidence that the assailants covered him up with a blanket or a cloth, so as to disable him from seeing them, before.
attacking him.
If we accept this part of the evidence of Zora Singh, as we think we must, since it is so strongly corroborated by the medical ' evidence and there is nothing on record which conflicts with this inference, it becomes evident that he must have shouted for help.
If that be so, it is difficult to understand why Surjit Singh and Bachan Singh would, not go to his rescue as they naturally would on hearing shouts even if they were at some distance.
We think that, judging from the number of injuries on the two victims, the incident must have lasted long enough to enable Surjit Singh, P.W. 4, and Bachan Singh, P.W. 5, to rush towards the scene of occurrence and to see and recognise at least the escaping assailants.
It is possible that they may have exaggerated in stating that they actually saw the attack on both the victims.
But that would not be enough to discard the whole of their testimony on the ground that they were not likely to be present at their field nearby at the time of the attack.
There is no evidence to suggest that they were elsewhere at the time.
Indeed, the fact that they arranged for the transport of the victims to a hospital ' in Ludhiana and took them there before day break shows that they were there to be able to do all this.
We do not think that the reasons given for suspecting their presence near enough from the tubewell.
at their sugarcane field, are strong enough to make it incredible that they should come to the help of the two attacked persons and to see at least the escaping assailants out of whom they recognised two.
As human testimony, resulting from widely different powers of observation and description, is necessarily faulty and even truthfull witnesses not infrequently exaggerate or imagine or tell half truths.
the Courts must try to extract and separate the hard core of truth from the whole evidence.
This is what is meant by the proverbial saying 732 that Courts must separate "the chaff from the grain". ' 'If, after considering the whole mass of evidence, a residue of acceptable truth is established by the prosecution beyond any reasonable doubt the Courts are bound.
to give effect to the result flowing from it and not throw it overboard on purely hypothetical and conjectural grounds.
In so far as the grounds given for rejecting the evidence of Zora Singh appear to us to be patently unreasonable and highly conjectural, we think that the case before us calls for interference by this Court.
That evidence, as we have already pointed out, is corroborated by medical evidence as well as by the statements of Surjit Singh and Bachan Singh.
Hence, although, the statements of Bachan Singh and Surjit Singh, taken by themselves, may not have been enough to warrant the conviction of the respondents, yet, when the evidence of Zora Singh, strongly corroborated by medical evidence is there, we think that the statements of Surjit Singh & Bachan Singh could be used to support the conclusion thus reached without going to the extent of holding that Surjit Singh and Bachan Singh must be wholly believed before their evidence could serve any useful purpose at all as the High Court seems to have erroneously thought.
Indeed, it is very difficult to find a witness whose evidence is so flawless that it has to be wholly, completely and, unqualifiedly accepted.
We think that the High Court had, without saying so, ignored the principle repeatedly laid down by this Court in appraising evidence, that Courts do not, in this country, act on the maxim : "falsus in uno falsus in omnibus".
In considering the effect of each allegation proved to be incorrect or the likelihood of its being true or untrue, we have to view it in the light of a whole setting or concatenation of facts in each particular case.
There may be reasons for doubting the, worth of the evidence of recovery from the respondents, but, that does not mean that the evidence given by Hardit Singh, S.I., P.W.8, relating to recoveries, is necessarily false so that the investigation itself is tainted.
Similarly, the more fact that, after the lodging of the F.I.R., the necessary precaution of sending the special report to a Magistrate speedily was not shown by the prosecution to have been observed does not mean that the whole, prosecution case is false or unacceptable.
On the other hand, the fact that the F.I.R. discloses only offences punishable under Sections 307 and 326 I.P.C. indicates that it must have been lodged before,6.
a.m. In any event, before the Inquest report on the morning of 19 6 1969, the police had before it the.
prosecution version contained in the F.I.R. to which a reference is made in the Inquest report.
The statements of Bachan Singh and Surjit Singh were also recorded before that.
Therefore, the alleged suspected delay in the lodging of the F.I.R. or in sending a special report to a Magistrate do not, on the facts of this case, indicate an attempt to conspire and fabricate.
Indeed, if this was so, as already observed, one would have expected to find the names of Milkiat Singh and Dalip Singh also in the F.I.R. instead of a description given of the unidentified youngmen which did not fit these two acquitted accused persons who were, therefore, given the benefit of doubt.
This feature of the evidence indicates that the names of these two accused were introduced in the case only after Zora Singh had regained consciousness and revealed them as the pro 733 secution alleged.
Hence, it is likely that the F.I.R. must have been made soon enough to contain the earliest version before Zora Singh 's version could get into it after he regained consciouness.
We think that the High Court had missed the core of truth in the case and had unjustifiably rejected the prosecution case which was strong enough on the statement of Zora Singh alone corroborated by medical evidence.
It had, we think, made the error of throwing away the prosecution case, without attempting to separate the chaff from the grain on the wrong assumption that the two were inseparable here.
We, therefore, set aside the order of acquittal by the High Court and convict the respondents for the offences with which they were charged.
As, however, the occurrence took place several years ago, we refrain from awarding a death sentence in this case.
We sentence both Hari Singh respondent u/s 302 I.P.C. and Gian Singh respondent sons of Arjan Singh to life imprisonment under Sections 302/34 I.P.C. We also sentence each of them to six years rigorous imprisonment and to pay a fine of Rs. 2,000/ each, and, in default of payment of fine, to rigorous imprisonment for a further period of two years under Sections 307/34 I.P.C. The sentences awarded shall run concurrently.
S.C. Appeal Allowed.

summary:
The trial court had convicted the respondents u/S. 302/34 I.P.C. and section 307/34 I.P.c.
for the death of two persons G&Z.
The occurrence took place during the night between 18th & 19th June, 1969.
The victims used to cultivate jointly with others.
The respondents and the two acquitted accused persons were brothers who lived in the same village.
It is said that there was enmity between the deceased persons and the respondents.
The prosecution case was that on the of 18th June 1969, the respondents with two others attacked G&Z and as result G died but Z survived.
The trial court had convicted the respondents but the High Court acquitted them.
I On appeal by the State, the main question was whether the three alleged eye witnesses, P.W.3, P.W.4 & P.W.5 who were related to each other and the victims could be relied upon, when corroborated by other facts and circumstances.
Allowing the appeal, HELD : (1) It is a principle, common to all criminal appeals by special leave that this Court will refrain from substituting its own views about the appreciation of evidence if the judgment of the High Court is based on one of two alternative views each of which was reasonably open to the High Court to accept.
If however, the High Courts approach is vitiated by some basically erroneous assumptions, or it adopts reasoning which, on the face of it is unsound, it may become the duty of this Court, to prevent a miscarriage of justice and to interfere with an order whether it be of conviction or of acquittal.[729F] (2) In the present case, the trial court had accepted the testimony of 3 eye witnesses, despite the fact that they are relations of the victims.
It has been repeatedly held by this Court that the mere fact that witness is related to the victim could not be a good enough ground for rejecting his testimony although it may be a ground for scrutinizing his evidence more critically and carefully where facts and circumstances disclose that only relations have been produced and others, presumably independent witness", who were available, were not produced.
[729 H] The ordinary presumption is that a witness speaking under an oath Is truthful unless and until he is shown to be unreliable or untruthful.
In any particular respect, witnesses solemnly deposing on oath in the witness box during a trial upon a grave charge of murder, must be presumed to act with a full sense of responsibility of the consequences of what they state.
it may be that what they say is so ' very unlikely or unreasonable that it is safer not to act upon it or even to disbelieve them.
[730 F] In the present case, the evidence of Z who became unconscious due to fatal blows by the assailants can be accepted when his evidence is strongly corroborated by medical and other evidence. 'Therefore, the present case is a fit case where this court will interefere.


judgement:
Appeal No. 1573(N) of 1972.
Appeal by special leave from the judgment and order dated the 3rd February, 1971 of the Gujarat High Court at Ahmedabad in Second Appeal No.639 of 1968.
V. section Desai, P. C. Bhartari and A. G. Meneses, for the appellants.
D. V. Patel, P. H. Parekh and Sunanda Bhandare, for respondent No. 1.
section K. Dholakia and M. N. Shroff, for respondent No. 2.
D. N. Mishra, for respondents Nos.
3a to 3d.
117 The Judgment of the Court was delivered by KHANNA, J.
Whether the decree for the possession of the land in dispute awarded in favour of Laxman Purshottam Pimputkar respondent No. 1 (hereinafter described as the respondent has become inexecutable after the coming into force of the Gujarat Patel Watans Abolition Act, 1961 (Gujarat Act 48 of 1961) (hereinafter referred to as the Act) is the short question which arises for determination in this appeal brought by special leave against the judgment of the Gujarat High Court.
The appellants and the respondent belong to one family.
The respondent represents the seniormost branch of the family.
The family was granted Patilki Watan in a number of villages, including Solsumbha, in district Thana.
The watan land situated in Solsumbha is the subject matter of the present dispute.
Under the Bombay Hereditary Offices Act, 1874 the person who actually performs the duty of a hereditary office for the time being is called an officiator.
Purshottam, father of the respondent, was the officiator till 1921 when, because of a disqualification incurred by him, a deputy was appointed in place of Purshottam.
After the death of Purshottam in 1940, the respondent became the officiator the branch of the appellants claimed to be ill possession of the watan land in dispute and some other lands under a partition effected in 1914.
In 1944 the respondent moved the government for resumption of the, watan land in dispute which was in possession of the branch of the appellants.
Prayer was also made by the respondent that he might be delivered possession of the land.
The government after some enquiry resumed that land by order dated October 9, 1946 and directed that possession of the same be restored to the respondent.
The appellants thereafter moved the government for reconsideration of that order.
The government on May 2, 1947 modified its previous order by directing that the.
appellants could continue to retain the possession of the land in dispute subject to payment of rent as might be fixed by the government from time to time.
The respondent thereupon instituted suit for a declaration that the order of the government dated May 2,1947 and an ancillary order dated March 1, 1949 were null, void and inoperative.
Prayer was also made that the appellants should remove all obstructions and hindrances from the land in dispute and should hand over the possession of the same to the respondent.
It was further prayed that the appellants should render account of the income, of the land to the respondent.
The suit was resisted by the appellants on the ground that the impugned orders were administrative orders and no suit could lie for setting them aside.
The suits were also stated to be barred by limitation.
The trial court decreed the suit in favour of the respondent.
On appeal the District Judge set aside the decreed in favour of the respondent.
The decision of the District Judge was affirmed on second appeal by the High Court.
The respondent then came up in appeal to this Court by special leave.
This Court as per its judgment dated December 13, 1962, reported in, (1964) 1 S.C.R. 200, accepted the appeal of the respondent and set aside the judgment of the High Court and the District Judge and restored that of the trial court whereby decree for possession of the land in dispute had been awarded in favour of the respondent against the appellants.
118 In the meanwhile in 1960 the State of Bombay was bifurcated and the land in dispute which was earlier part of Bombay State became part of the State of Gujarat.
On April 1, 1963 the Act came into force.
On July 19, 1966 the respondent filed an application to execute the, decree for possession of the land which had been awarded in his favour.
Objection was then taken by the appellants that the decree awarded in favour of the respondent had become inexecutable because of the coming into force of the Act.
This objection found favour with the executing court which consequently dismissed the execution application.
Appeal filed by the respondent against the order of the executing court was dismissed by the District Judge Bulsar.
The respondent thereafter filed second appeal before the Gujarat High Court.
The High Court came to the conclusion that the respondent was entitled to execute the decree for possession of the land obtained by him against the appellants.
Appeal of the respondent was accordingly allowed.
The appellants have thereafter come up in appeal to this Court by special leave.
The question which arises for determination, as stated earlier, is whether the decree for possession of the land in dispute which was awarded in favour of the respondent has become inexecutable because of the coming into force of the Act.
It would, therefore, been to refer to the relevant provisions of the Act.
Section 2 contains the definitions.
According to section 2(7), "hereditary patelship" means every village office of a revenue or police patel held hereditarily under the existing watan law for the performance of duties connected with the administration or collection of the public revenue of a village or with the village police, or with the settlement of boundaries or other matters of civil administration of a village and includes such office even where the services originally appertaining to it have ceased to be demanded.
Section 2(11) defines "patel watan" to mean a watan held under the existing watan law for the performance of duties appertaining to the hereditary patelship whether any commutation settlement in respect of such patel watan has or has not been effected. "Unauthorised holder" has been defined in section 2(14) to mean a person in session of a watan land without any right or under a lease, mortgage sale, gift or any other kind of transfer thereof, which is null and void under the existing watan law.
"Watan", according to section 2(15), means watan property, if any, together with the hereditary office and the rights and privileges attached 'to it.
Section 2(16) defines "watandar" to mean a person having hereditary interest in a patel watan under the existing watan law and includes a matadar and 'a representative watandar.
Section 2(17) defines "watan land" to mean the land forming part of the watan property.
According to section 2(18).
"watan property" means the movable or immovable property held, acquired or assigned under the existing watan law for providing remuneration for the performance of the duty appertaining to a hereditary patelship and includes a right under the existing watan law to levy customary fees or perquisites in money or in kind, whether at fixed times or otherwise and also includes cash payments in addition to the original watan property made voluntarily by the State Government and subject periodically,to motion or withdrawal.
119 Section 3 gives, powers to the Collector, to decide various questions arising under the Act including the question whether any land is watan land and whether a person is, watandar or authorised holder or unauthorised holder.
Right is also given to a person aggrieved by the order of the Collector to file appeal to the State Government Section 4 has material bearing and reads as under : "4.
Notwithstanding any usage or custom or anything contained in any settlement, grant, agreement, sanad, or any decree or order of a court or the existing watan law, with ,effect on and from the appointed day, (i) all patel watans shall be and are hereby abolished; (ii) all incidents (including the right to hold office and watan property, the right to levy customary fees or perquisites in money or in kind, and the liability to render service) appertaining to the said watans shall be, and are hereby extinguished; (iii) no office of patel shall be, hereditary; and (iv) subject to the provisions of sections 6, 7 and 10 all watan land shall be and is hereby resumed and shall be subject to the payment of land revenue under the provisions of the Code and the rules made thereunder as if it were an unalienated land : Provided that such resumption shall not affect the validity of any alienation of such watan land made in accordance with the provisions of the existing watan law or of the rights of an alienee thereof or any person claiming under or through him." Section 5 deals with resumption of watan land which is not a grant of soil and is held subject to a total or partial exemption from payment of land revenue thereof.
We are, in the present case not concerned with such watan land.
According to section 6, watan land to which the provisions of section 5 do not apply shall, in cases not falling under section 7 or section 10 be regranted to the watandar of the watan to which it appertained on payment by or on behalf of the watandar to the State Government of the occupancy price equal to six times the amount of the full assessment of such land within the prescribed period and in the prescribed manner and the watandar shall be deemed to be occupant within the meaning of the Code in respect of such land and shall primarily be liable to pay land revenue to the State Government in accordance with the provisions of the Code and the rules made thereunder; and all the provisions of the Code and the said rules relating to unalienated land shall subject to the provisions of this Act, apply to the said land.
Section 7 deals with the regrant of watan land to authorised holders.
According to the section, any watan land other than land to which the provisions of section 5 apply held by an authorised holder shall be regranted to him on payment by him or on his behalf 120 to the State Government of the occupany price mentioned in section 6 and subject to the like conditions and consequences and all the provisions of section 6 shall apply mutatis mutandis in relation to the regrant of the, land under this section to the authorised holder as if were the watandar.
Section 10 provides that where any watan land is in possession of an unauthorised holder, he shall be summarily evicted therefrom by the Collector in accordance with the provisions of the Code : Provided that if the State Government is of opinion that in view of the investment made by such bolder in the development of the land or in the non agricultural use of the land or otherwise, his eviction will cause undue hardship to him, it may direct the Collector to regrant the land to such holder on payment of such amount and subject to such terms and conditions as the State Government may determine and the Collector shall regrant the land accordingly.
It is further provided in the section that watan land unless regranted under the section shall be disposed of in accordance with the provisions of the Bombay Land Revenue Code applicable to disposal of unoccupied unalienated land.
Section 22 contains the saving clause and reads as under "22.
Nothing contained in this Act shall affect (i) any obligation or liability already incurred under an incident of a patel watan before the appointed by, or (ii) any proceeding or remedy in respect of such obligation or liability, and any such proceeding may be continued or any such remedy may be enforced as if this Act had not been passed.
" Mr. Dasai on behalf of the appellants has contended before us that in view of the provisions contained in section 4 of the Act, the decree for the possession of the land in dispute awarded in favour of the respondent has become inexecutable.
it is submitted that as the decree was awarded in favour of the respondent in his capacity as a watandar and as patel watans have been abolished, the respondent cannot obtain the possession of the land to which he was entitled as a watandar ' This stand has been controverted by Mr. Patel on behalf of the respondent and he submits that there is nothing in the language of section 4 which renders the decree for the possession of the land in dispute inexecutable.
In any case, according to Mr. Patel, the right of the respondent to execute the decree and the liability of the appellants to hand over possession of the land to the respondent under the decree have been kept intact by section 22 of the Act.
The provisions of section 4 of the Act have been reproduced above and it is manifest therefrom that with effect from the appointed day, viz, April 1, 1963 all patel watans are abolished and all incidents appertaining to the said watans are extinguished.
It is further provided that as from the appointed day no office of patel shall be hereditary and that subject to the provisions of section 6, 7 and 1 0 all watan lands are resumed and would be subject to the, payment of land revenue.
The question with which we are concerned is whether the 121 right to execute the decree for the possession of watam land which has been obtained by the watandar against other persons comes to an end because of the abolition of patel watans and the extinguishment of all incidents appertaining to the said watans.
The answer to this question, in our opinion, should be in the negative.
There is nothing in the language of section 4 which renders Such decrees for possession to be inexecutable.
Had the legislature intended that the decrees for possession of the watan lands which had been obtained by the watandars against third persons should become inexecutable, the legislature would have indicated such an intention by incorporating some provision to that effect.
In the absence of any such provision, it is not permissible to read 'a prohibition in section 4 of the Act 'On the execution of a decree for possession of the watan land obtained in favour of the watandar.
The fact that patel watans have been abolished 'and incidents.
appertaining to the watans have been extinguished does not lead to the conclusion that the right of the erstwhile watandar to the possession of the watan lands also comes to an end.
Indeed, clause (iv) of section 4 of the Act expressly provides that the resumption of watan land consequent upon the abolition of patel watans and the extinguishment of incidents appertaining to the said watans would be subject to the provisions of sections 6, 7 and 10.
According to section 6, the watan land, subject to the conditions mentioned in that section, 'shall be regranted to the watandar of the watan and he shall be deemed to be occupant of the said land.
The watandar would be entitled to continue to be in possession of the watan lands, if he complies with the provisions of that section despite the abolition of patel watans and the extinguishment of incidents appertaining to the said watans.
The object of the Act as would appear from its preamble was to abolish patel watans because its hereditary character smacked of some kind of feudalism.
At the same time, the legislature made it clear that it was not intended to deprive the watandar of the possession of the land if he complied with the conditions laid down in section 6 of the Act.
It, therefore, cannot be said that there was a severance of all connections between the watandar and the watan land because of the abolition of patel watans and the extinguishment of incidents appertaining to such watans.
A residual right was still there in the erstwhile watandar and that included the right to retain possession of watan land if the conditions mentioned in section 6 were complied with.
Section 7 of the Act contains provisions for regrant of watan lands to authorised holders.
while section 10 provides for eviction of unauthorised, holders.
Provision is also made for regrant of the land by the State Government to unauthorised holders if the Government forms the opinion that his eviction would cause undue hardship to him.
It would follow from a combined reading of sections 4, 6 7 and 10 of the Act that a watandar on the abolition of patel watans and extinguishment of the incidents appertaining to the watans does not automatically lose his right to possession of the watan lands.
The same is.
true of an authorised holder.
Their right to retain possession of 122 watan land as long as they comply with the prescribed conditions is .statutorily recognised.
The position of a watandar and an authorised holder is in marked contrast to that of an unauthorised holder who can be summarily evicted from the watan lands by the Collector under section 10 of the Act.
So far as quondam watandars are concerned, they are entitled to be in possession of the watan lands not in their capacity as watandars but by virtue of the operation of section 6 of the Act.
Likewise, the authorised holders are entitled to be in possession by virtue of section 7 of the Act.
If the respondent is entitled to be in possession of the land in dispute under section 6 of the Act, the right to execute the decree for possession of the land can plainly be not denied to him on account of the provisions of the Act.
According to Mr. Desai, if the appellants are not dispossessed from the land in dispute in execution of the decree obtained by the respondent against them, the appellants can 'approach the State Government for regrant of the land in dispute to them because their eviction would cause undue hardship to them.
It is, in our opinion, not necessary for the purpose, of the present case to go into the question whether the appellants can claim regrant of the land under section 10 of the Act because this question does not materially affect the right of the respondent to execute the decree for possession of the land in dispute obtained by him against the appellants.
If the respondent is entitled to execute the decree for possession of the land obtained against the appellants, in that event the question whether the appellants, if allowed to remain in possession, could have applied for regrant of the land to them, is hardly of any relevance.
Reference has been made by Mr. Desai to the words "any decree or order of a court" in the opening clause of section 4 of the Act.
It is urged that those words indicate that the decree or order of a court can also be not executed with effect from the appointed day.
This ,contention, in our opinion, is not well founded.
What is contemplated by the opening clause of section 4 of the, Act is that not withstanding any usage or custom or anything contained in any settlement, grant, agreement, sanad, or any decree or order of a court or the existing law with effect from the appointed day, the results mentioned in the various clauses of that section would follow.
The words "any decree or order of a court" are preceded by the words "anything conta ined in any settlement, grant, agreement, sanad".
It is a well established rule in construction of statutes that general terms following particular ones apply only to such perso ns or things as are ejusdem generis with those comprehended 'in the language of the Legislature,.
In other words, the general expression is to be read as comprehending only,things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a under sense was intended.(see p. 297 of Maxwell on the Interpretation of Statutes Twelfth Edition).
In our opinion, the opening clause of section 4 indicates that irrespective of any usage or custom and irrespective of any settlement, grant, agreement, sanad, or decree or ,order of a court or the, existing watan law, which might have defined ,and declared the incidents appertaining to patel watans.
the results contemplated by the various clauses of section 4 would follow and 123 nothing contained in the settlement, grant, agreement, sanad, or decree or order of the court or the existing watan law would prevent the operation of that section.
In view of what has been held above, it is, in our opinion, not necessary to deal with the alternative argument of Mr. Patel that the execution proceedings taken by the. respondent to recover possession of the land were also protected by section 22 of the Act.
Reference has been made by Mr. Desai to a Full Bench decision of Nagpur High Court in the case of Chhote Khan vs Mohammad Obedulla Khan(1).
It was held by the majority in that case that after the coming into force of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 the preemption decrees obtained by landlords are no longer executable because the persons seeking to enforce them have lost their proprietary interest.
The aforesaid case cannot be of any help to the, appellants because it has been conceded by Mr. Desai that there were no provisions in the above mentioned Madhya Pradesh Act corresponding to sections 6, 7 and 10 of the Act with which we are concerned.
It is also consequently not necessary to express any opinion about the correctness of the view taken by the majority in the above mentioned Full Bench decision.
There is, in our opinion, no merit in this appeal which is accordingly dismissed with costs.
V.P.S. Appeal dismissed.
(1) A.I.R. 1953,Nag.

summary:
On the question whether, the right to execute a decree for the possession of watan land which has been obtained by the watandar came to an end, because of the abolition by the Gujarat Patel Watans Abolition Act.
1961, of patel watans and the extinguishment of all incidents appertaining to them under section 4 of, the Act, HELD : (1) There is nothing in the language of section 4 which renders such decrees for possession to be in executable.
Had the legislature intended that such decrees should become in executable, the legislature would have indicated .such intention by incorporating some provision to that effect.
[121B] (2) The words "any decree or order of a Court" in the opening clause of the section do not indicate that the decree or order of court could not be executed with effect from the appointed day.
The opening clause of the section only indicates that irrespective of any usage or custom and irrespective of any settlement, grant, agreement, sanad or decree or order of a court or the existing watan law.
which might have defined and declared the incidents appertaining to patel watans, the results contemplated by the various clauses of the section would follow and nothing contained in such settlement etc.
would prevent the operation of that section.
[122E 123A] (3) If the fact that patel watans have been abolished and incidents appertaining to them have, been extinguished does, not lead to the conclusion that the right of the erstwhile watandar to the possession of the watan lands also comes to an end.
Section 4(iv) expressly provides that the resumption of watan land consequent upon the abolition of patel watans would be subject to the provisions of sections 6, 7 and 10, According to section 6, the watan land.
subject to the conditions mentioned in that section, shall be regranted to the watandar.
He shall be deemed to be occupant of the said land, and he would be entitled to continue in possession if he complies with the provisions of that section.
That is, so far as the quondam watandars are concerned, they are entitled to be in possession of the watan lands, though not in their capacity as watandars but by virtue of the operation of section 6 of the Act.
If the respondent would be entitled to be in possession of the land under section 6, the right to execute the decree for possession of land cannot be denied to him.
[121C 122] (4) If the respondent is entitled to execute the decree for possession of the land obtained against the appellants the question whether the appellants, if allowed to remain in possession, could have applied for regrant to them under section 10 is not relevant.
[122C E]