judgement:
Appeals No. 488 and 489 of 1969.
Appeals by special leave from the judgment and order, dated November 4, 1968 of the Delhi High Court in Letters Patent Appeal No. 30 of 1968.
A.C. Mitra, section Ray, B.K. Chakravarti, H.K. Puri and B.N. Kirpal, for the appellant (in C.A. No. 488 of 1969) and the respondent (in C.A. No. 489 of 1969).
Jagdish Swarup, Solicitor General, V. C. Mahajan and S.P. Nayar, for the respondents (in C.A. No. 488 of 1969) and the appellants (in C.A. No. 489 of 1969).
179 The Judgment of the Court was delivered by Shah, J.
The Rampur Distillery Company Ltd. hereinafter called 'the Rampur Company ' is a manufacturer of industrial alcohol.
In 194.3 the Rampur Company appointed Govan Brothers its managing agent for 20 years.
In July 1946 a group.
of persons who may be referred to 'as.
the 'Dalmia Group ' assumed control over Govan Brothers.
V.H. Dalmia who became Managing Director of Govan Brothers, besides being a director of a number of other companies, held important positions in several trade associations.
On March 19, 1953, information was lodged by the Registrar of Joint Stock Companies, Delhi, that V. Ii.
Dalmia and others had committed offences of criminal breach of trust.
By virtue of section 330 of the , the manaing agency of the Rampur Company was to expire on August 15, 1960, unless before that date the managing agent was re appointed for a fresh term in accordance with the provisions of the .
On December 10, 1959 the Rampur Company reappointed Govan Brothers, Managing Agent for ten years with effect from August 15, 1960, and applied to the Central Government that the extension of the managing agency of Govan Brothers be approved.
The Central Government granted extension for five years under section 326 of the with effect from August 15, 1960.
In the report of the Commission headed by Mr. Justice Vivian Bose 'appointed to enquire into and report on the working of the 'Dalmia Jain Group of Industries ', the dealings of V.H. DaImia in relation to the financial affairs of some of the companies of which he was a director was severely criticized.
In the view of the Commission, V.H. DaImia was in the year 1946 47 guilty of grossly improper conduct in relation to several companies of which he was a director.
In May 1964 the police lodged criminal proceedings against V.H. Dalmia and 23 others in the Court of the District Magistrate, Delhi, charging them with being parties to a "criminal conspiracy having for its objects the commission of criminal breach of trust of the assets of the Dalmia Jain Airways Ltd., and committing offences of forgery and falsification of accounts", and that criminal breach of trust was committed by them in respect of amounts "running into crores of rupees".
The proceedings so instituted are still pending.
On September 23, 1964, the Rampur Company passed another resolution appointing Govan Brothers Managing Agent for five years with effect from August 15, 1965, and applied to the Central Government to accord approval to the appointment.
This appli 180 cation was referred by the Central Government to the Company Law Board which was constituted under section 10E of the , with authority to.
exercise the powers of the Central Government among others to deal with applications under section 326 of the .
The Campany Law Board extended the tenure of Govan Brothers till March 31, 1967.
Another application by the Rampur Company dated August 25, 1966 for extension of the term of the managing agency upto August 1970 was rejected by the Board.
The Rampur Company then moved a petition in the High Court of Delhi on June 10, 1967, for an order quashing the decision of the Board and for an order extending the term of the managing agency till March 31, 1970.
A single Judge of the High Court granted the petition holding that the managing agent was a private limited company and the reasons for failure to extend the managing agency agreement of Govan Brothers being "entirely personal to V.H. Dalmia" were "completely irrelevant in so far as the affairs of the Managing Agent company or of the petitioner 'Company (Rampur Company) were concerned." In appeal against that order a Division Bench of the High Court observed that where a Managing Agent is a corporate body, the acts and 'conduct of the Directors of that body become the object of scrutiny in determining whether such a corporate body may be considered to be a fit and p.roper person for appointment or reappointment as Managing Agent, and that the enquiry must cover all relevant 'activities and actions of the Directors of the corporate body.
The High Court accordingly set 'aside the order and remitted the case for a fresh decision.
The learned Judge who heard the petition after remand proceeded to dismiss the writ petition.
In appeal against the order the High Court observed that in determining whether a person was fit 'and proper to be appointed a managing agent his "acts and activities" in the past cannot be ignored altogether, and coupled with other circumstances, may provide a valid ground for not approving an appointment, but since under section 326(2)(b) the Board has to consider the fitness and propriety of a managing agent at the date of the proposal the Board has also "to take into consideration the subsequent conduct, acts and activities of the person", and the Board having failed to consider the entirety of the "acts and activities" of V.H. Dalmia the opinion formed by the Board was "incomplete" and not "in accordance with the provisions of section 326(2)(b) of the ".
The High Court accordingly set aside the order and directed the Board to take into consideration material circumstances, namely, the "acts and activities" of V.H. Dalmia during the years subsequent to 1947 in forming the requisite opinion under section 326(2)(3.).
181 Against that order two appeals have been preferred one by the Company Law Board, and the other by the Rampur Company with special leave.
Section 326 of the provides: "(1) In respect of any company to which neither the prohibition specified in section 324 nor applies, a managing agent shall not be appointed or ' reappointed, (a) except by the company in general meeting; and (b) unless the approval of the Central Government has been obtained for such appointment or reappointment.
(2) The Central Government shall not accord its approval under sub section (1) in any case, unless it is satisfied (a) that it is not against the public interest to allow the company to have a managing agent; (b) that the managing agent proposed is, in its opinion, a fit and proper person to be appointed or reappointed as such, and that the conditions of the managing agency agreement proposed are fair and reasonable; and (c) that the managing agent proposed has fulfilled any conditions which the Central Government require him to fulfil.
" The Rampur Company in a general meeting resolved that the managing agency of Govan Brothers be continued till August 14, 1970, and applied for the approval of the Company Law Board By sub section
(2) of section 326 the Board is enjoined not to accord its approval unless it is satisfied that it is.
not against the public interest to allow the Company to have a managing agent, that the managing agent proposed is, in its opinion, ,a fit and proper person to be appointed or re appointed as such, and that the conditions of the managing agency agreement proposed are fair and reasonable.
The section uses the present tense.
The satisfaction must be with reference to the three conditions existing in praesenti., but in adjudging whether a person is fit and proper to be appoint past actings and conduct cannot be ignored.
In considering whether a person is fit to be appointed a managing agent the Board is not restricted to a consideration of his acts, conduct 'and activities proximate to the date of the application: the Board has to consider his acts and activities past and present, the interest of the share holders and the general interests of the public in allowing 182 the management to be continued by the Directors of the Company and other circumstances which have a heating on the question.
The Board apparently restricted itself to the findings recorded by the Commission headed by Mr. Justice Vivian Bose relating to the dealings of V.H. Dalmia with the companies of which he was a director between the years 1945 and 1947.
The criticism by the Commission of the conduct of V.H. Dalmia, suggested that there were serious grounds for complaint against him, but these observations related to acts and omissions many years before the date on which the application was made.
The Board had to consider "whether Govan Brothers is a fit and proper person to be appointed managing agent" on a review of all the relevant circumstances, the criticism by the Commission, the progress made by the Rampur Company while under the management of V.H. Dalmia and others since 1946 47, the interests of the shareholders, the creditors and of the public generally, and also that a complaint was pending in a Criminal Court against V.H. Dalmia and others charging them with committing serious offences.
The Solicitor General appearing for the Union of India contended that by the use of the expression "in its opinion" occurring in section 326(2)(b) of the , it is meant that the subjectice satisfaction of the Central Government is determinative of the question whether the proposed person is fit and proper to be appointed managing agent, and if the Board reached the conclusion (as it has done in the present case on considerations which are not irrelevant) that Govan Brothers is not a fit and proper person to be appointed managing agent, the decision based on the satisfaction cannot be challenged before the High Court.
The argument is that the existence of the satisfaction as well as the decision reached on that satisfaction are immune from the scrutiny of the Court.
We are unable to agree.
By sub section
(2) of section 326 of the , the Central Government is invested with power to decide whether it is against the public interest to allow the Company to.
have a managing agent, whether the person proposed iS fit and proper to be appointed or reappointed managing agent, whether the conditions of the managing agency agreement proposed are fair and reasonable, and whether the managing agent proposed has fulfilled the conditions which the Central Government has required him to fulfil.
Investment of that power carries with it a duty to act judicially: i.e. to hold an enquiry in a manner consistent with rules of natural jusitice, to consider all relevant matters, to ignore irrelevant matters, and to reach a conclusion without bias, without predilection and without prejudice.
The satisfaction contemplated by section 326 must, therefore, be the result of an objective appraisal of the relevant materials.
The reason is clear.
By Section 326 several restrictions upon the power of the Companies and individuals to carry on business are 183 imposed in the interest of the shareholder, the creditors, and in the larger interests cf the public.
The order made by the Central Government under section 326 may result in serious detriment of the Company and the proposed managing agent, but in the larger public interest, if it is valid, they have to suffer it.
Exercise of the power conferred upon the Central Government is restrictive of valuable: rights of the Company and of the proposed managing agent, and severely restricts the liberty of contract.
The scheme of the section implies investigation and a decision on the matters set out therein.
Section 326 lays down conditions by sub section
(1)(a) in which the Central Government may override the resolution of the general body of shareholders in certain specified conditions.
Upon the Central Government is imposed a duty not to accord approval to the appointment or reappointment of a proposed managing agent in the light of els.
(a), (b) & (c) of sub section
Though the sub section is enacted in form negative in substance it confers power upon the Government subject to the restrictions imposed by els.
(a), (b) & (c) to refuse to accord approval.
Sub section (2) imposes upon the Central Government the duty not to accord approval to appointment or re appointment of a proposed managing agent unless the Government is satisfied that the managing agent is a fit and proper person to be appointed, that the conditions of the managing agency agreement are fair 'and reasonable and that the managing agent has fulfilled the conditions which the Central Government required him to fulfil.
Thereby the Central Government is not made the final arbiter of the existence of the grounds on which the satisfaction may be founded.
The satisfaction of the Government which is determinative is satisfaction as to existence of certain objective facts.
The recital about satisfaction may be displaced by showing that the conditions did not exist, or that No. reasonable body of persons properly versed in law could have reached the decision that they did.
The Courts however are not concerned with the sufficiency of the grounds on which the satisfaction is reached.
What is relevant is the satisfaction of the Central Government about the existence of the conditions in els.
(a), (b) & (c) of sub section
(2) of section 326.
The enquiry before the Court, therefore, is whether the Central Government Was satisfied as to the existence of the conditions.
The existence of the satisfaction cannot be challenged except probably on the ground that the authority acted mala fide.
But if in reaching its satisfaction the Central Government misapprehends the nature of the conditions or proceeds upon irrelevant materials, or ignores relevant materials, the jurisdiction of the Courts to examine the satisfaction is not excluded.
The power in our judgment, is a quashi judicial power and not ad 184 ministrative: it necessarily implies a duty arising from the nature of the act empowered to be done, the object for which it is to be done, the conditions in which it is to be done, and its repercussion upon the power of the Company, the shareholders, the creditors and the general public for whose benefit the power is to be exercised.
The Solicitor General appearing for the Board invited our attention to the judgment in The Barium Chemicals Ltd. and Anr.
vs The Company Law Board and Others(1).
But in that case Hidayatullah and Shelat, JJ., held that the action of the Board under section 237(b) was administrative.
Shelat, J., with whom Hidayatullah, J., agreed, observed at p. 362: "There is no doubt that the formation of opinion by the Central Government is a purely subjective process.
There can also be no doubt that since the legislature has provided for the opinion of the government and not of the court such an opinion is not subject to a challenge on the ground of propriety, reasonableness ' or sufficiency.
But the Authority is required to arrive at such an opinion from circumstances suggesting what is set out in sub clauses (i), (ii) or (iii).
If these circumstances were not to exist, can the government still say that in its opinion they exist or can the Government say the same thing where the circumstances relevant to the clause do not exist ? .
But the expression 'circumstances suggesting ' cannot support the construction that even the existence of circumstances is a matter of subjective opinion.
That expression points out that there must exist circumstances from which the Authority forms an opinion that they are suggestive of the crucial matters set out in the three sub clauses.
" Sarkar, C.J.,I. and Mudholkar, J., did not agree with that view.
Bachawat, J. expressed no opinion on the nature of the power conferred by section 237.
But in Rohtas Industries Ltd. vs
S.D. Agarwal Another(2) in dealing with an application challenging the action of the Company Law Board under section 237(b) of the this Court held that the opinion formed is not open to challenge, but the circumstances can.
The view expressed by Sarkar, C.J., and Mudholkar, J., was disapproved.
Some reliance was sought to be placed upon the observations made in Nakkuda Ali vs
M.F. De. section Jayaratne(3), in which the Judicial Committee observed: (1) (2) ; (3) 185 "After all, words such as these are commonly found when a legislature or law making authority confers power on a minister or official.
However read, they must be intended to serve in some sense as a condition limiting the exercise of an otherwise arbitrary power.
But if the question whether the condition has been satisfied is to be conclusively decided by the man who wields the power the value of the intended restraint is in effect nothing.
No doubt he must not exercise the power in bad faith: but the field in which this kind of question arises is such that the reservation for the case of bad ' faith is hardly more than a formality.
Their Lordships therefore treat words in reg. 62 'where the Controller has reasonable grounds to believe that any dealer is unfit to be allowed to continue as a dealer ' as imposing a condition that there must in fact exist such reasonable grounds known to the Controller before he can validly exercise the power of cancellation.
" In Nakkuda Alli 's case(1) the Controller of Textiles in Ceylon made an order cancelling the appellant 's licence to act as a dealer.
The Controller acted under a Defence Regulation which authorised him to cancel a licence "when the Controller has reasonable ground to believe that any dealer is unfit to be allowed to continue as a dealer".
In the view of the Judicial Committee a condition imposed "that there must in fact exist such reasonable grounds known to the Controller, before he can validly exercise the power of cancellation", but certiorari to correct the order did not lie, and there was no other means for obtaining redress.
That was a case under the Defence Regulations, and the Judicial Committee was of the view in our judgment erroneously that the duty to act judicially arises only from an express provision to that effect.
It was pointed out and we think rightly by Lord Reid in Ridge vs Baldwin(2) that when an enactment requires an official to have reasonable grounds for the decision, the law was not so defective that the aggrieved person cannot bring up the decision for review, however seriously he may be affected, and however obvious it may be that the official acted in breach of his statutory obligation.
Again in Padfield and Others vs Minister of Agriculture, Fisheries and Food and Others(3), the Minister declined to refer a complaint to the Committee of Investigation established under the Agricultural Marketing Act, 1958, that the price differential worked unfairly against the south east region of England where milk was more valuable and the cost of transport was less and the price of land was high.
The Minister informed the applicants that the complaint raised wide issues and which he did not consider suitable (1) (2) [1964] A.C. 40.
(3) ; 186 for investigation.
He claimed that he had unfettered discretion.
The House of Lords remitted the case with a direction that the Minister should consider the complaint.
We are, therefore, unable to agree that because the exercise of the power depends upon satisfaction, its exercise cannot be subjected to judicial review the Government being the final arbiter of the conditions in which the power may be exercised.
But in dealing with a petition against an order made by the Board under section 326 of the , the High Court is not constituted a Court of Appeal over the judgment of the Board.
The Court has merely to consider whether in arriving at its decision the Board has restricted itself to the enquiry contemplated to be made and has taken into consideration all the relevant circumstances and that its decision is not vitiated by irrelevant or ,extraneous matters.
The High Court was, therefore, right in holding that in determining whether Govan Brothers is a person fit and proper to be reappointed managing agent, the past conduct and actings which Were relevant to the issue had to be taken into account i.e., the Board had to consider the entire conduct and actings past and present of the Directors of Govan Brothers before rejecting the petition filed by the Rampur Company.
The appeal filed by the Rampur Company must therefore fail.
It must, however be pointed out that the time during which the managing agency of Govan Brothers is to remain in operation is fast running out.
The Solicitor General appearing on behalf of the Company Law Board and the Union of India has assured us that with the co operation of the Rarmpur Company, the Board will take steps to dispose of the application within one month from the date on which the order reaches the Company Law Board.
The appeals fail and are dismissed.
There will be no order as to costs in this Court.
P.K.P.S. Appeals dismissed.

summary:
Govan Brothers were since 1943, the managing agents of the Rampur Company.
In May 1964 criminal proceedings which are still pending were lodged against V.H. Dalmia, the managing director of Govan Brothers, pursuant to the report of the Bose Inquiry Commission that V.H. Dalmia was in the year 1946 47 guilty of grossly improper conduct in relation to several companies of which he was a director.
In September 1964 the company applied for approval under section 326 of the Companies Act of the reappointment of Govan Brothers as managing agents.
The Company Law Board approved the extension of the tenure for three years.
When approval was sought for another extension till 1970 the Board rejected the application.
In considering whether Govan Brothers were "fit and proper" within the meaning of section 326(2) (b) of the Act to be reappointed managing agents the Board restricted itself to the findings recorded by the Bose Commission relating 'to the dealings of V.H. Dalmia with the companies of which he was a director between the years 1945 and 1947.
The company moved the High Court by a Writ Petition for an order quashing the decision of the Board 'and for an order directing the Board to extend the managing agency till 1970.
The High Court set aside the Board 's order and directed it to take into consideration the entirety of the "acts and activities" of V.H. Dalmia in forming the requisite opinion under section 326(2) (b).
The Board and the company preferred appeals to this Court.
On the question: (i) whether the decision of the Board under the section based on its satisfaction is immune from the scrutiny of the court and (ii) whether the High Court should have given a direction to the Board to extend the period of the managing agency, HELD: Dismissing the appeals (i) By sub section
(2) of section 326., the Central Government is invested with power to decide whether it is against the public interest to allow the company to have 'a managing agent, whether the person proposed is fit and proper to be appointed managing agent, whether the conditions of the managing agency agreement proposed are fair and reasonable, and whether the managing agent proposed has fulfilled the conditions which the Central Government has required him to fulfill.
The scheme of the section implies investigation and a decision on the matters set out therein.
The power is a quasi judieial power and not administrative: it necessarily implies a duty arising from the nature of the act empowered to be done, the object for which it is to, be done, the conditions in which it is to be done and its repercussion upon the power of the company, the shareholders the creditors and the general public for whose benefit the power is to be 178 exercised.
The satisfaction contemplated by section 326 must therefore be the result of on objective appraisal of the relevant materials because, exercise of the power conferred upon the Central Government is restrictive of valuable rights of the company and of the proposed managing agent and severely restricts their liberty of contract.
The courts are not concerned with the sufficiency of the grounds on which the satisfaction is reached.
The enquiry before the court is whether the Central Government was satisfied as to the existence of the conditions in els.
(a), (b) and (c) of sub section
(2) of section 326.
The existence of the satisfaction cannot be challenged except probably on the ground that the authority acted mala fide.
But: if in reaching its satisfaction the Central Government misapprehends the nature of the conditions or proceeds upon irrelevant materials or ignores relevant materials the jurisdiction of the courts to examine the satisfaction is not excluded, [182 F H; 183 A E H; 184 A B] Barium Chemicals vs The Company Law Board.
[1966] Supp.
S.C.R. 311, Rohtas Industries vs
S.D. Aggarwal, A.I.R. 1969 S.C. 7Q7, referred to.
Ridge vs Baldwin, ; and Padfield vs Minister of Agriculture; , , applied.
The observations of the Judicial Committee in Nakuda Ali vs Jaya Ratne, that the duty to act judicially arises only from an express provision to that effect disapproved.
The section uses the present tense '.
The satisfaction must be with reference to the conditions existing in praesenti, but in adjudging whether a person is fit and proper to be appointed managing agent past actings and conduct cannot be ignored.
The Board is not restricted to a consideration of his acts, conduct 'and activities proximate to the date of the application; it has to consider his acts and activities past and present, the interest of the shareholders and the general interests of the public in allowing the management to be continued by the directors of the company and other circumstances which have a bearing on the question.
[181 G H; 182 A] (ii) In dealing with a petition against an order made by the Board under section 326 the High Court is not constitute.d a court of appeal.
The Court has merely to consider whether in arriving at its decision the Board has restricted itself to the enquiry contemplated to be made and has taken into consideration all the relevant circumstances and that its decision is not vitiated by irrelevant or extraneous matters.
[186 B D]


judgement:
Appeal No. 1356 of 1956.
Appeal from the judgment and decree dated December 3, 1965 of the Calcutta High Court in Appeal from Original Decree No. 85 of 1965.
295 D.N. Mukherjee, for the appellant.
M.C. Bhandare, Pratap Singh and K. Rajendra Chaudhuri, for respondent No. 1.
The Judgment of the Court was delivered by Grover, J.
This is an appeal by certificate from a judgment of the Calcutta High Court.
The facts may be briefly stated.
One Ratanamala Dassi who was governed by the Bengal School of Hindu Law as modified by the , hereinafter called the Act, died intestate in January 1964 leaving no issue or lineal descendants.
Her husband Monmotha Nath Dutt had predeceased her.
The said Ratnamala Dassi left her surviving the appellant and respondents 2 and 3, the brothers of her husband and respondent 1, Urmilla Sundari Dassi her husband 's sister.
In 1964 respondent No. 1 instituted a suit for a declaration that as an heiress of Ratnamala Dassi she had 1/4 share in the movable and immovable property left by her and that she be allotted her share by partition of those properties.
The appellant entered appearance and took up the plea in his written statement that under the Act he and respondents 2 and 3 being the brothers of the husband of the deceased Ratnamala Dassi were the heirs in preference: to respondent 1 who.
was the sister of the deceased 's husband.
The suit was tried on the original side by a learned Single Judge of the Calcutta High Court who granted a preliminary decree on December 23, 1964 in favour of respondent 1 holding that she had 1/4 share in the estate left by Ratnamala Dassi.
The appellant preferred an appeal to a division bench which was dismissed.
The sole point which has to be considered is whether, according to the order of succession as laid down in Class II of the Schedule to section 8 of the Act, brother would succeed in preference to the sister or whether the brother and sister would succeed .jointly having equal shares ? According to section 15(1 ) when a female Hindu dies intestate her property devolves according to the Rules set out in section 16.
Section 15 divides the groups of heirs of a female dying intestate into five categories described as Entries (a) to (e).
We are concerned, in the present case, with Entry (b) which is "secondly, upon the heirs of the husband".
Section 16 provides that the order of succession among heirs referred to in section 15 shall be and the distribution of the intestate 's property among those heirs shall take place according to the following Rules: Rule l: "Among the heirs specified in sub section (1 ) of section 15, those in one entry shall be preferred 296 to those in any succeeding entry, and those included in the same entry shall take simultaneously.
Rule 2 . . . . .
Rule 3.
The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub section (1) and in sub section (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father 's or the mother 's or the husband 's as the: case may be, and such person had died intestate in respect thereof immediately after the intestate 's death.
" As the property in the present case was of the husband of Ratnamala Dassi we have to turn to section 8 to find out who would have been his heirs.
Section 8 reads: Section 8 "The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter : (a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule.
(b) secondly, if there is no heir of class 1, then upon the heirs, being the relatives specified in class 1I of the Schedule (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate then upon ' the cognates of the deceased.
" The Schedule mentioned in section 8 to the extent it is material is reproduced below : CLASS 1 "Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son.
CLASS 11 I. Father.
297 II.
(1) Son 's daughter 's son, (2) son 's daughter 's daughter, (3) brother, (4) sister.
III . . . . VII . . . VIII . . . Explanation . . . " Section 9 lays down that among the heirs specified in the Schedule those in class 1 shall take simultaneously and to the exclusion of all other heirs and those m the first entry in class II shall be preferred to.
those in the second entry and so on.
Section 11 is to the effect that the property of an interstate shall be divided in any one entry in class II of the Schedule so that they share equally.
Before the High Court the contention raised on behalf of the appellant was that "brother" being prefixed by arabic numeral 3 came before "sister" which word had the numeral (4) before it and that the object of using the numerals within a particular group was to prescribe the order of precedence or preference.
It was also argued that the use of the arabic numerals in groups II, III and IV of Class II must have some meaning; otherwise the legislature would have used such numerals in respect of the heirs not only in class II but in class I as well.
The learned judges of the division bench felt that the use of the arabic numerals appeared to be redundant but "the combined effect of this section read with the others seems to.
be that the legislature intended that the heirs named after numerals II,III IV composed three entries only".
We are unable to accede to the argument that the use of arabic numerals is decisive of the point whether or not the heirs specified in entry II of class II succeed simultaneously and equally.
It is inconceivable that a matter of such importance should have been left to the employment of numerals alone.
If the intention of the legislature was that each class of relatives shown against the arabic numerals constituted an entry express and specific provisions to that effect would have been made in the substantive sections of the Act.
Indeed section Il says quite clearly that the property of an intestate shall be divided between the heirs specified in any one entry in class II of the Schedule so that they share equally.
That language would not be consistent with the view that file heirs shown against the arabic numerals constitute an entry within the meaning of section 11.
The Act was meant to lay down a comprehensive and uniform system of inheritance and its scheme is to 298 prescribe a set of rules for succession to the property of male and female Hindus dying intestate.
Sections 8 to 13 contain the general rules relating to succession to the property of a male Hindu including the matter of ascertainment of shares.
Sections 15 and 16 contain the general rules affecting succession to the property of a female Hindu.
The rules relating to preferential heirs are given in s.10.
If the intention was to give preference among the heirs in Class II according to.
arabic numerals treating the same as a separate entry some provision would undoubtedly have been made in s.11 for that purpose.
As noticed before it is that section which deals with the distribution of property among heirs in class II of the Schedule.
Indeed s.11 would be wholly unnecessary if each one of the heirs mentioned in each entry of class II were to take preference to the next one in the.
same entry.
It is also.
significant that in class 1 male and female heirs have been treated as equal.
There is no reason why any distinction should have been made among the heirs in class II on the ground of the heir being male or female.
For instance in entry II in class Il a brother would have preference over the sister and in his presence the later would succeed if the submission on behalf of the appellant is to.
be accepted.
No reason or justification has been suggested for making such a distinction.
Similarly on the appellant 's argument the son 's daughter 's son should have preference over the son 's daughter 's daughter.
That again would run counter to the whole scheme of the Act that male and female heirs should get equal treatment.
It must be remembered that the Act incorporated one of the principal reforms which had become a pressing necessity owing to the changed social and economic conditions in Hindu society that in succession there should be equal distribution between male and female heirs.
It is true that the draftsmen while employing the arabic numerals in entries Il to IV of class II only are likely to have something in mind but on the whole and in view of the reasons which have been given above no particular significance can be given to the use of the arabic numerals.
Generally speaking numbers or numerals are employed in a statute for the sake of convenient and easy reference but their use cannot override the statutory provisions.
Nor is it possible in the 'absence of any indication in the sections or in the Schedule itself to attribute such a radical departure from the general scheme of classification of heirs, as has been suggested, namely, that in case of three entries only in class 11 the legislature intended to create an order of preference and lay down the same by the use of arabic numerals.
There is no merit in this appeal which fails and it is dismissed with costs.
V.P.S. Appeal dismissed.

dataset_name: IN-Abs

summary:
Under sections 15 and 16 of the , which deal with rules regarding succession to the property of a female Hindu, where the property is that of her husband, the heirs would be those set out in 8 Under section 8, there arc two classes of heirs mentioned in the Schedule to the Act.
In Class 11 there are IX entries and only in entries 11, 111 and IV the heirs are mentioned as against arabic numerals. 'Brother ' and 'sister ' arc mentioned as items (3) and (4) in entry II of Class 11.
Section 9 lays down that among the heirs specified in the Schedule those in Class I shall take simultaneously and to the exclusion of all other heirs and those in the entry I in Class II shall be preferred to those in entry II and so on.
A Hindu widow, in possession of her deceased husband 's properties, died in 1964 .
She left no lineal descendants, but her husband had three brothers and a sister surviving.
On the. question whether .the three brothers were entitled to succeed to the property in preference to the sister, on the ground that 'brother ' is mentioned as item (3) of entry II of Class 11, whereas 'sister ' is mentioned as item (4), HELD: If the intention was to give preference among the heirs in Class 11 according to Arabic numerals treating such numerical item as a separate entry, some provision to that effect would have been made in section 11.
Section 11 states that the property of an intestate shall be divided among the heirs specified in any one entry in Class II so that they share equally, and the language in sections 9 and I 1 is not consistent with the view that Arabic numerals constitute entries within the meaning of section 11.
Further, the scheme of the Act is that male and female heirs should get equal treatment, and, in Class 1, male and female heirs have been treated as equal.
There is no reason why any distinction should have been made among the heirs in Class 11 on the ground of sex.
Therefore, it is not possible, in the absence of any indication in the sections or in the Schedule itself, to attribute such a radical departure from the general scheme of classification that, in case of three entries only in Class 11.
(entries II, III and IV), the Legislature intended to create an order of preference and lay down the same by the use of Arabic numerals.
[299 C D, H; 300 B H]


judgement:
Appeal No. 1560 of 1966.
Appeal by special leave from the judgment and decree dated September 11, 1961 of the Mysore High Court in Second Appeal No. (B) 43 o,f 1956.
R.B. Datar and S.N. Prasad, for the appellants.
R. Gopalakrishnan and D.P. Mohanty, for the respondent.
343 The Judgment of the Court was delivered by Vaidialingam, J.
This appeal, by special leave, by defendants 1 to 4, is directed against the judgment and decree, dated September 11, 1961 of the Mysore High Court, in S.A. (B) No. 43 of 1956, confirming the decrees of the two Subordinate Courts granting a decree for possession in favour of the plaintiff respondent.
The respondent instituted suit No. 1 of 1945, before the Second Class Sub Judge at Chinchali, for recovery of possession of the suit lands.
According to the plaintiff, the lands are Patilkiwatan Inam lands and he has been registered as 'Nawa Wala ' by order No. 68 dated March 30, 1927 of the Revenue Authorities of the then Kolhapur State.
The suit properties had gone in partition to one Maya Gouda, a member of the Patil family.
Maya Gouda died about 35 or 40 years ago.
and his widow Jakkawwa was in possession of the lands till the date of her death on August 16, 1943.
The plaintiff 's further case was that though Maya Gouda and Jakkawwa had a daughter Bayabai, the 7th defendant in the suit, the latter could not inherit the inam properties under the law obtaining in Kolhapur State.
Therefore the line of Maya Gouda has become extinct and the plaintiff, as Nawa Wala is entitled to.
get possession of the properties as per the Wat Hukum No. 26 of Fasli 1323.
Defendants 1 to 4, the appellants herein, contested the claim of the plaintiff on various grounds.
They pleaded that the plaintiff was not the senior most member of the senior branch of the family to which Maya Gouda belonged and that they were the nearest reversioners, under Hindu Law, to the properties of Maya Gouda.
They further pleaded that there was no extinction of the line of Maya Gouda as he had left a daughter, the 7th defendant, behind him.
They also.
claimed title by adverse possession.
The trial Court, by its Judgment and decree dated February 10, 1949 negatived the plea of adverse possession raised by the appellants.
It further held that the expression 'Nashtamsha ' in ' the relevant Wat Hukum means that there is no direct male descendant to inherit the properties of the deceased.
For this proposition, the trial Court relied upon a judgment of the Kolhapur High Court in S.A. No. 210 of 1947.
On this interpretation it held that the line of Maya Gouda had become extinct with regard to the Inam lands according to law, as the 7th defendant, the daughter, could not inherit the properties.
The trial Court further held that the plaintiff, defendants 1 to 4 and the deceased Maya Gouda, were members of one and the same family and that this fact had been admitted by both the parties.
In the end the trial Court decreed the claim of the plaintiff to get possession of 344 the suit properties and passed a decree to that effect against the defendants.
Defendants 1 to 4 filed an appeal before the District Judge, Kolhapur, which appeal was later transferred to.
the District Judge, Belgaum, in view of the merger of Kolhapur State with Bombay.
The said appeal, No. 403 of 1949, was disposed of by the Second Extra Assistant Judge, Belgaum, by his decree and judgment dated March 24, 1952.
The Assistant Judge was of the view that the suit will have to be remanded for fresh consideration and for this purpose certain issues were framed 'and parties given opportunity to adduce further evidence.
The plaintiff challenged this order of remand, passed by the Assistant Judge, before the High Court of Bombay.
The Bombay High Court, by its judgment dated July 21, 1953 set aside the remand order passed by the Assistant Judge of Belgaum 'and directed the District Court to dispose of the appeal according to law.
The Assistant Judge of Belgaum, by his judgment dated January 29.
1954 disposed of C.A. 403 of l 949, confirming the decree and judgment of the trial Court.
The .learned Judge held that the plaintiff had been registered 'as the Nawa Wala of the branch of the family consisting of himself, the defendants a.nd the deceased Maya Gouda and Jakkawwa with respect to the 8 annas ' share of the Maratha Patils.
He further held that the Civil Courts had no jurisdiction to go behind the order of the Revenue Authorities recognizing the plaintiff as Nawa Wala, in view of section 3 of the Kolhapur Revenue Jurisdiction Act.
On the question,n whether Maya Gouda 's branch has become Nashtamsha, as mentioned in the Wat Hukum, the learned Judge held that the Kolhapur Courts had consistently interpreted the said expression to mean that a branch became Nashtamsha with respect to Watan Properties when the deceased person left behind him no sons.
As authority for this proposition.
the Court relied upon the decision of the Kolhapur Supreme Court in Dada Babaji Patil vs Kalgonda Babgonda Patil(1).
The Court also referred to the later decision in S.A. 210 of 1947.
relied on by the trial Court.
On this interpretation, the Court held that in spite of Maya Gouda having left behind him his daughter, the 7th defendant, his line should be considered as Nashtamsha, so far as the Watan properties were concerned and in consequence, the plaintiff, as Nawa Wala was entitled to get possession of the properties.
The finding that the defendants had not completed title by adverse possession was accepted by the Court.
In this view, the appeal filed by defendants 1 to 4 was dismissed.
Defendants 1 to 4 filed a second appeal before the Bombay High Court, which appeal, on reorganisation of the States, was (1) (1945) Kol.
L.R. 541.
345 transferred to the Mysore High Court and registered as Second Appeal No. 43 (B) of 1956.
The Mysore High Court, by its judgment dated September 11, 1961, has confirmed the decisions of the Subordinate Courts accepting the claim of the plaintiff and dismissed the second appeal.
Mr. R.B. Datar, learned counsel for the appellants, urged two contentions: (1 ) The view of the High Court that the right to Watan properties goes along with the service to be performed by the person registered as Nawa Wala, is erroneous and is contrary to the Wat Hukum No. 26 of Fasli 1323.
(2) The view of the High Court and the two S.subordinate Courts that there is Nashtamsha in the line of Maya Gouda, is errcneous, as apart from there being the daughter, the 7th defendant, the appellants are also heirs, being the nearest reversioners and, as such, entitled to succeed.
We may deal with both the contentions together.
It is no doubt seen that the High Court has proceeded on the basis that the right to.
Watan properties goes along with the duty to perform the services and therefore prima facie, the person who is required to do the services, must be entitled to the property.
But a reference to the Wat Hukum No. 26 indicates that all the properties need not necessarily be with the person doing the service, and that the service is to be taken from persons in the eldest branch regarding Patils and that it is not to.
be taken by other sharers.
It further provides that as service is not to be taken from bhauband, local fund and judi of their share should be recovered by the village Officers along with Government land revenues to be credited to the Government for payment to the person registered as Nawa Wain.
In this case, though the plaintiff as the registered Nawa Wain was doing service, it is seen that the suit properties were in possession of Jakkawwa, the widow of Maya Gouda who died about 30 or 40 years ago.
That the property must go with the service, is only one of the reasons given by the High Court for holding against the appellants.
But this reasoning does not vitiate the conclusions arrived at by the learned Judges that the plaintiff was entitled to get possession of the properties as Nawa Wala under the Wat Hukum, as Maya Gouda 's branch had become Nashtamsha.
Mr. Datar further contended that the expression 'Nashtam sha ' occurring in the Wat Hukum means a total absence of heirs in the sense that there is nobody to succeed, under Hindu Law, to the estate of Maya Gouda.
As Maya Gouda had left a daughter.
the 7th defendant and as, in any event the appellants are the nearest reversioners entitled to succeed to the estate of Maya Gouda under Hindu Law, it cannot be stated that the line of Maya Gouda has become extinct so as to enable the plaintiff to 346 recover possession of the properties.
It is common ground that the Wat Hukum provides for the Nawa Wala taking possession of the properties if the family of a particular holder of Watan lands becomes Nashtamsha.
The expression 'Nashtamsha ' has come up for consideration 'before the Courts in Kolhapur.
The Supreme Court o,f Kolhapur, in Dada Patil 's Case (1) had to consider the question whether the expression 'Nashtamsha ' means complete and total absence.
of direct lineal heirs.
In that decision, after the death of the holder, his widow inherited the lands and remained in possession till her death.
On the death of the widow, the reversionary heirs of the deceased holder under Hindu Law entered into possession of the properties.
The plaintiff in that case, who had been registered as the Nawa Wala by the Revenue Authorities, sued to obtain possession of the lands and the claim of the plaintiff was allowed by the Court, holding that the existence of the reversionary heirs did not take the case out of 'Nashtamsha ' as provided in the Wat Hukum.
The above decision was also followed in the same Court, by Lokur, J., in S.A. 210 of 1947 who held that if there is no direct male descendant then that case should be considered as 'Nashtamsha '.
We have already referred to the fact that these two decisions have been followed by the trial Court as well as by the Assistant Judge on appeal.
From these decisions it follows that in the Kolhapur State, the succession to Watan properties was not governed by the ordinary Hindu Law, but by Wat Hukum No. 26 and on the interpretation placed by the Courts in that State, there will be 'Nashtamsha ' when a person dies without leaving behind him any sons.
That is the position in the case before us.
As pointed out earlier, Maya Gouda died leaving his daughter, the 7th defendant, but no sons.
The 7th defendant possibly could not inherit the Watan properties, according to the decision of the Courts in Kolhapur State.
The plaintiff 's specific claim was that under the law obtaining in Kolhapur State, the 7th defendant was only the daughter of Maya Gouda and could not inherit the properties and that he, as the Nawa Wala was entitled to recover possession of the properties.
On the other hand, defendants 1 to 4 specifically pleaded that the 7th defendant, the daughter of Maya Gouda, was entitled to inherit the properties.
All the Courts have accepted the plaintiff 's plea, and decreed his claim.
Mr. Datar, learned counseL, referred us to the decision of the Division Bench of the Bombay High Court in Shivgonda @ Appasaheb Virgonda Patil vs Champabai Bharatar Sidgonda @ Racsaheb Shidgonda Patil (2).
That judgment was delivered on (1) (1945) Kol.
L.R. 541.
(2) Appeal N9.
297 of 1957 from original decree, decided on 7 12 1962.
347 December 7, 1962 and a certified copy of the same has been placed before us.
The learned Judges have observed: "Whatever may have been the interpretation of the Vathukums in Kolhapur State, so far as this Court is concerned it is well settled that 'Nashtamsha ' does not mean a man dying without male issue 'but it means a man dying without leaving any heir.
Accordingly, therefore, unlike the authorities in Kolhapur State, this Court held that as long as there was a single heir, whether male or female, to the deceased, it does not result in 'Nashtamsha ' of the line." According to.
this decision, Maya Gouda 's branch cannot be considered to be 'Nashtamsha ' as he has left his daughter, the 7th defendant, as his heir, and she will be entitled to inherit the Watan properties.
We may also refer to a Division Bench decision of the Mysore High Court in Sambaii Ramachandra Kulkarni vs Gopal Govind Dattaward(1) wherein the Mysore High Court has not agreed with the view of the Bombay High Court, expressed in an earlier decision, similar to the view taken by the Bombay High Court in Shivgonda 's case(2), that the expression 'Nashtamsha ' has to be interpreted as meaning that a holder has left no heirs at all who can inherit his estate under the Hindu Law.
It is not necessary for us in this case to.
resolve the conflicting views noted above.
Whatever may be the interpretation, the appellants will not be entitled to inherit the properties of Maya Gouda.
Because, if the view of the Kolhapur Courts is accepted, the plaintiff, as the Nawa Wala, is entitled to get possession; and if the Bombay view is accepted, it is the 7th defendant, who will be entitled to inherit the watan properties of her father Maya Gouda.
In either case, the appellants cannot inherit the watan properties of Maya Gouda and thus they are out of the picture.
The 7th defendant, against whom also a decree for possession has been passed, did not contest the claim of the plaintiff.
Nor did she file any appeal against the decree of the trial Court.
It has to be further noted that even the appellants have not made her a party, either be,fore the first Appellate Court, or in the High Court, or even before this Court.
In the result, the appeal fails and is dismissed with costs.
V.P.S. Appeal dismissed.
(1) (2) Appeal No. 297 of 1957 from original decree, decided an 7 12 1962.

summary:
The suit lands were patilkiwatan lands in the erstwhile State of Kolhapur.
Under the wat hukum No. 26 of Fasli 1323, the service was to be performed by persons in the eldest branch, but the properties need not necessarily be with the person doing the service.
Thus, though the respondent was registered 'as the Nawa wala and was doing service, the properties were in possession of another branch.
The widow of the last holder of the properties, in that branch, died in 1943 leaving a daughter.
The respondent, thereupon, filed a suit claiming the properties on the ground that, under the wat hukum, the other branch had become Nashtamsha, that is, extinct, because there was no direct male descendant, and that he was entitled to get possession of the properties from the appellants.
who were in possession.
The suit was decreed by the Subordinate courts and the High Court.
In appeal to this Court, HELD: In Kolhapur State succession to watan properties was governed by the war hukum and not by ordinary Hindu law.
In Dads Babaji Patil vs Kalgonda Babgonda Patil, (1945) Kol.
L.R. 541, a decision of the Supreme Court of Kolhapur, followed in S.A. No. 210 of 1947 by the High Court of Kolhapur, it was held that a branch became Nashtainsa when the deceased person left behind him no sons.
But, according to Shivgouda vs Champabai Bharatar Siaganda App.
No. 297/57 (dt. 7 12 1962) of the Bombay High Court, a branch cannot be said to be Nashtamsha if the last holder leaves a daughter.
But, whatever may be the correct interpretation, the appellants could not succeed, because, if the view of the Kolhapur courts is accepted, the respondent,as Nawa wala, was entitled to get possession, and if the Bombay view is according to Shivgonda vs Champabai Bharatar Siaganda App.
No. 297/57 who. would be entitled to inherit the watan properties.
[348 B E: 349 B. E G] Sambaji Ramachandra Kulkarni vs Gopal Govind Dattawad, , referred to.


judgement:
iminal Appeal No. 84 Of 1968.
Appeal by special leave from the judgment and order dated Febru`ary 9, 12, 1968 of the Bombay High Court in Criminal Appeal No. 541 of 1966.
A.S.R. Chari, T.H. Sardar and M. 1.
Khowaja, for the appellant.
B.D. Sharma, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
The appellant along with two other persons were prosecuted on a charge under section 379/34 of the Indian Penal Code committing theft .of a valuable parcel of diamonds from the person of one Wadilal C. Mehta in a railway train between Masjid Bander and Byculla railway stations on November 9, 1965 in furtherance of their common intention.
One of these two other persons (hereinafter described as accused No. 2) was acquitted by the Chief Presidency Magistrate but the appellant and accused No. 3 were each sentenced to undergo rigorous 'imprisonment for l 2 months.
In appeal to the High Court the conviction of the appellant.
was altered to one under section 411 and the sentence was reduced to one of nine months ' rigorous imprisonment.
The appellant has come up to this Court by special leave his main contention being that a statement ascribed to him as having been made to the police was artificial and false and in any event there was no discovery of any fact made as a result of that statement to render it admissible in evidence against him under section 27 of the .
The case for the prosecution was as follows.
Mehta who had about 215 pieces of diamonds in paper packets wrapped in a silk handkerchief in the inside breast pocket of his garment got into a local train at Masjid Bander along with a companion at about 8 p.m. on 9th November 1965.
As the compartment which they wanted to board was already full of passengers, he and his 334 companion had to stand in the passage outside the compartment where there were many other persons already standing including .accused 2 and 3.
Taking exception to the posture of accused No. 2 who was in close contact Mehta asked him to stand erect and at the same time happened to notice a piece of his silk handkerchief lying on the floor of the compartment.
Feeling his garment the realised that his pocket had been picked and the packet of diamonds had disappeared.
Mehta and his companion caught hold of accused 2 and 3 and searched their persons but to no purpose.
At Byculla railway station they were dragged out of the train on to the platform by Mehta and his companion but the former managed to get free and slip, back into the train.
On shouts being raised the train was brought to a halt but the two accused could not be found.
Mehta went on to Victoria Terminus Railway station and lodged a complaint there about the happening.
He was shown a number of photographs kept at the police station and he pointed out therefrom three of the persons resembling the suspects concerned in the theft of his diamonds.
The police immediately got busy and on the basis of some information received started looking for the appellant but were not able to trace him that night.
The next morning (10 11 1965 the complainant went to the V.T. Railway station once more and identified the photographs of accused No. 2.
The appellant was arrested at 12.30 p.m. on November 10, 1965 and accused No. 2 was apprehended very shortly thereafter.
Both the them were brought to the C.I.D. office for interrogation.
Apparently being familiar with the modus operandi of pick pockets the police went round the offices of several newspapers in Bombay and at the office of Bombay Samachar Press S.I. Guad was told by Pawri, the advertisement manager of the Bombay Samachar, that two persons had come to their office on that day at about 11 a.m. for 'the purpose of putting in an advertisement about the recovery of a packet of diamonds.
S.I. Guad learnt from Pawri the name and address of one D.S. Parekh as one of the two persons who had earlier interviewed Pawri for the insertion of the advertisement.
Attempts to contact Parekh by S.I. Gaud were however unsuccessful.
On the morning of 11th November 1965 the appellant made a statement before Inspector Mokasi and S.I. Graud and this was recorded in the presence of panchas.
The portion of the statement with which we are concerned reads: "It will point out one Gaddi alias Ramsingh of Delhi at Bombay Central Railway station at/II Class Waiting Hall to whom I have given a packet containing diamonds of different sizes more than 200 in number.
" The appellant thereafter led the police and the panchas to the Said waiting hall and there from among a crowd of people the 335 appellant pointed out accused No. 3 to the police.
D.S. Parekh was also there.
The appellant is alleged to have repeated there the same statement which he had made earlier at the police station.
Accused No. 3 produced a handkerchief containing a packet in which 211 diamonds were found.
Both accused No. 3 and D.S. Parekh were put under arrest.
The diamonds were identified by Mehta as a portion of those which he had lost on the night of 9th November.
An identification parade was held by a Justice of the Peace at 4.15 p.m. at which Mehta and his companion identified the appellant as also accused 2 and 3 as being persons who were standing in the passage outside the first class compartment of the local train when Mehta 's pocket was picked.
The High Court came to the conclusion that the complicity of the appellant with the crime alleged rested only on two pieces of evidence brought forward at the trial.
The first was his identification by Mehta and his companion at the identification parade to the effect that he was present in the train on the material date and at the material hour.
By itself this means nothing because there were a number of other persons who were standing in the passage at the same time and there is no suggestion and indeed there could be none that any of these persons were connected with the crime.
To fasten the guilt on the appellant the prosecution had to rely on the evidence furnished by the statement alleged to have been made by the appellant to the police and the panchas in consequence whereof he was said to have led the police party to the Bombay Central railway station waiting hail and to the discovery of the diamonds from accused No. 3.
As the statement of the accused recorded above was in the nature of a confession it would come under the embargo of section 26 of the Evidence Act unless it can be brought within the ambit of section 27 of the Evidence Act.
which reads: "Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." In order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him.
It is evident that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first d.erived from information given by the accused.
If the police had no information before of the complicity of accused No. 3 with the crime and had no idea as to whether the diamonds would 336 be found ' with him and the appellant had made a statement to the police that he knew where the diamonds were and would lead t,hem to the person who had them, it can be said that the discovery of the diamonds with the third accused was a fact deposed to be the appellant and .admissible in evidence under section 27.
However, if it be shown that the police already knew that accused No. 3 had got the diamonds but did not know where the said accused was to be found, it cannot be said that the information given by the appellant that accused No. 3 had the diamonds and could be pointed out in a large crowed at the waiting hall led to the discovery of a fact proving his complicity with any crime within the meaning of section 27.
The ,fact deposed to him would at best lead to the discovery of the whereabouts of accused No. 3.
Under section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him.
An exception to this is however provided by section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in the custody of the police when he made the incriminating statement.
Section 27 is a proviso to section 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the: crime, irrespective of the question whether it is confessional or otherwise.
The essential ingredient of the section is that the information given by the accused must lead to the discovery of the, fact which is the direct outcome of such/nformation.
Secondly, only such portion of the/nformation given as is distinctly connected with the said recovery is admissible against the accused.
Thirdly, the discovery of the fact must relate to the commission of some offence.
The embargo, on statements of the accused before the police will not apply if all the above conditions are fulfilled.
If an accused charged with a theft of articles or receiving stolen articles, within the meaning of section 411 I.P.C. states to the police, 'I will show you the articles at the place where I have kept them ' and the articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact i.e. keeping of the articles by the accused at the place mentioned.
The discovery of the fact deposed to in such a ease is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place.
In principle there is no difference between the above statement and that made by the appellant in this ease which in effect is that 'I will show you the person to whom I have given the diamonds exeeding 200 in number".
The only difference between the two statements is that a "named person" is substituted for the place ' where the article is kept.
In neither case are the articles or the diamonds the fact discovered.
337 The section was considered by the Judicial Committee of the Privy Council in Pulukuri Kotayya vs King Emperor(1).
A question there arose as to what ' part of a statement of the accused leading to the recovery of a knife in a murder case was admissible in evidence.
The statement read: "About 14 days ago.
, I Kotayya and people of my party lay in wait for Sivayya and others at about sunset time at the corner of Pulipad tank.
We all beat Boddupati China Sivayya and Subbayya to.
death.
The re maining persons Pullayya, Kotayya and Narayana ran away.
Dondapati Ramayya who was in our party received blows on his hands.
He had a spear in his hands.
He gave it to me then.
I hid it and my stick in the rick of Venkatanarasu in the village.
I will show if you come.
We did all this at the instigation of Pulukuri Kotayya.
" The Board held that the whole of the statement except the passage "I hid it (a spear) and my stick in the rick of Venkatanasrasu in the village.
I will show if you come" was inadmissible.
Holding that the extent of the information admissible must depend on the exact nature of the fact discovered to.
which such information was required to relate the Judicial Committee pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the fact.
" The Board was careful to observe that "information as to past user, or the past history of the object produced was not related to its discovery in the setting in which it was discovered.
" This Court had to consider the scope of section 27 of the Evidence Act in K. Chinnaswamy Reddy vs State of Andhra Pradesh(2).
There the appellant was convicted under section 411 I.P.C. by an Assistant Sessions Judge.
He was tried along with another person who was convicted under sections 457 and 380 I.P.C. A house had been burgled and valuable articles stolen.
During the course of investigation the police recovered 17 ornaments on the information given by the appellant.
The other accused had also given information on the basis of which another stolen ornament was recovered.
The Assistant Sessions Judge came to the conclusion that the other accused had actually committed house breaking and had removed the ornaments from the house burgled and had handed over 17 of them to the appellant.
He also came to the conclusion that the l 7 ornaments recovered at the instance of the appellant were in his possession and he therefore found him guilty under section 411 I.P.C. On appeal the Sessions Judge held that the appellant had not been proved to be in possession of the 17 orna (1) 76 I.A. 65.
(2) ; 338 ments which were recovered at his instance from a garden.
According to the Sessions Judge the full statement of the appellant that "he would show the place where he had hidden them (the ornaments)" was not admissible against him.
The Sessions judge held that the part of the statement of the appellant which related to his having hidden the ornaments was inadmissible.
There was a criminal revision to the High Court and re trial was ordered and it was against that order that the appeal to this Court was directed.
Overruling the interpretation of the Sessions Judge, this Court held that the whole of the statement related distinctly to the discovery of the ornaments and was admissible under section 27 of the Evidence Act.
It was said: "These words (namely, where he had hidden them) having nothing to.
do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement.
" The contention that in a case where the offence consisted of possession even the words "where he had hidden them" would be inadmissible as it amounted to an admission by the accused that he was in possession of them was rejected on the ground that if the statement related distinctly to the fact thereby discovered it would be admissible in evidence irrespective of the question as to.
whether it amounted to a confession or not.
There can be no doubt that the portion of the alleged statement of the appellant extracted by us would be admissible in evidence.
The question still remains as to whether the said statement was really a discovery of a fact disposed to or weather there was no discovery within the meaning of section 27 of the Evidence Act because the police was already in possession of the fact that the accused No. 3 was a person who had the diamonds.
In order to find out the extent of the knowledge of the police as to the whereabouts of the diamonds it is necessary to look at the testimony of section 1.
Gaud and Pawri, the advertisement manager, of the Bombay Samachar.
Gaud stated at the trial that he had taken up the investigation at about 11 p.m. on the night of 9th November 1965 and after going to V.T. Railway station he had gone to Kamathipura 6th lane to trace the appellant on the basis of some information received at the railway station.
He learnt the next day about the identification of the photograph of the second accused by the complainant and arrested the appellant at 12.30 p.m. and the second accused at 1 p.m. on the same day.
The same afternoon he visited different newspaper establishments including that of Bombay Samachar Press and received information from the advertisement manager, Pawri in consequence whereof he went to find D.S. Parekh.
He did not succeed in tracing him and continuing the interrogation of the appellant and the second 339 accused he called panchas on the morning of 11th November to, have the statement of the appellant recorded.
Thereafter he went to the Bombay Central railway station and there found the diamonds with the accused No. 3 pointed out to him by the appellant.
In cross examination he said that he had contacted Pawri.
at 3 p.m. on loth November but he had not asked Pawri to produce the advertisement material nor was the same shown to him.
His testimony was that he had only asked for the name and address of the person who had given him the advertisement material and Pawri had done so from memory.
He denied having ' seen any letter or any advertisement material at Pawri 's office.
He also denied that he had told Pawri not to publish the advertisement.
It is to be noted that Police Inspector Mokashi examined before S.I. Gaud at the trial had stated in his examination inchief that at 2.30 p.m. on 10 11 1965 he had asked Gaud to visit different newspaper establishments including Bombay Samachar to find out whether the appellant had sent anyone there to surrender the diamonds as unclaimed.
Pawri 's evidence was that two persons had come to see him on November 10, 1965 for the purpose of putting in an advertisement relating to the finding of a packet of diamonds.
According to Pawri the two persons had given him a text of an advertisement to b.e published along with a covering letter signed by one and counter signed by the other and that the third accused was one of the persons who had met him at his office and that the covering letter as well as the advertisement material had been ' signed by both the persons who had met him.
The charges for advertisement amounting to Rs. 40 had been paid by one of them and a receipt taken.
One of the two persons had also produced a card of Dawood Suleman attached to the covering letter in response to a request for identification.
The letter dated 10 11 1965 shows that it was addressed to the manager, Bombay Samachar signed by Ramsingh Santram and Dawood Suleman Ghanchi and the text of it: "We have found diamond packets on (platform) No. 3 of Masjid Bunder station at eight o 'clock at night on the date 9 11 1965.
A public notice in respect thereof is sent herewith.
Please publish the same on the first page of the issue dated 11 11 1965, Thursday.
" The text of the statement meant for insertion in the newspaper ran: "A diamond packet has been found at Bombay Central Railway station on 9 11 65.
Please contact Bombay Samachar by proving identity and paying the charges for the public notice.
" 340 Below the above were the words: 'Care of ' Anand Savarorup Samma, Market, West Malad.
Ramsingh Santram Dawood Suleman Ghanchi Ghoghari Mohalla 136, Niaz Building Ground Floor, Bombay 3.
Pawri stated that Bombay Central railway station had been written by him after scoring out Masjid Bunder.
In cross examination he said that the two persons had brought the diamonds and wanted to leave the same at the newspaper office but this was declined.
They had come to the office at about 11 a.m. and seen a director before meeting the witness.
The advertisement was to.
be published on the morning of 11th but this was not done because the police had given instructions to the contrary.
The police had gone to their office in the afternoon when he had to1d them what had taken place in the morning.
In view of the evidence of Pawri and Mokashi it is not possible to accept the testimony of Gaud.
It is incredible that Guad who had gone to the newspaper office specially for the purpose of finding out whether anybody had approached the newspaper people to surrender the diamonds would not ask Pawri in detail about the persons who had met him or what they had told him or what they had done about the publication of the finding of the diamonds.
Pawri 's definite statement was that he had told the police all that had happened in the morning.
In our view, Pawri must have shown Gaud the advertisement material, the covering letter with the card and the names of the two persons and the address of one of them.
He could not possibly have failed to tell Gaud that the two persons who had come to him had even offered to hand over the diamonds.
There is no positive evidence as to whether Gaud had asked the Bombay Samachar people not to insert the advertisement on the morning of the 11th.
nothing turns on that.
It was 11.0 'clock in the morning when Parekh and accused No. 3 had gone to the newspaper office and it was about 3 in the afternoon that Gaud met Pawri for the purpose of making enquiries.
Gaud 's statement that Pawri had given him Parekh 's address from memory cannot be accepted.
Besides it is absurd to suggest that Gaud would not have asked Pawri to show him the documents made over by Parekh and accused No. 3 or that there would have been any reluctance on the part of Pawri to tell Gaud about it when he knew that the police were making investigations about a packet of diamonds picked from the pocket of someone who had lodged a complaint with the police.
341 In our view Gaud must have learnt that Parekh and or accused No. 3 had the custody of the diamonds.
Therefore the statement of the appellant that accused No. 3 had the custody of the diamonds would not be something unknown to the police so as to constitute "a fact deposed to as discovered in consequence of the information received" from the appellant.
The discovery, if any, merely related to the whereabouts of accused No. 3.
There was no discovery of any fact deposed to by the appellant within the meaning of section 27.
If the police had not gone to the office of the Bombay Samachar and had not learnt of the complicity of the third accused with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the diamonds in the custody of accused No. 3.
the result although the statement.
might otherwise have been admissible in evidence, that there was no discovery of a fact connecting the appellant with the receipt of the diamonds which were stolen within the meaning of section 27 of the Evidence Act because the police already knew that the third and or the fourth accused had the diamonds.
The appeal must be allowed and the appellant directed to be set at liberty.
Y.P. Appeal allowed.

summary:
The appellant was charged under section 379/34 I.P.C. for committing theft of a parcel containing diamonds along with the, two other persons.
ln the course of investigation the police went to a newspaper office where they learnt that one of the.
co accused had come to put in advertisement respecting the recovery of the diamonds, stating that it was in his possession, and left 'an address with the newspaper.
The police could not trace that co accused, but later, as a result of information furnished by the appellant to the police and the panchas the police were taken to a place where the diamonds were discovered from that other co accused.
On the question whether the statement of the appellant was admissible in evidence against him under section 27 of the , HELD: The statement was not admissible.
Under section 25 of the Evidence Act no confession made by an accused to a police officer can be admitted in evidence against him.
An exception to this is however provided by section 26 which makes a confessional statement made before a Magistrate admissible in evidence against an accused notwithstanding the fact that he was in custody of the police when he made the incriminating statement.
Section 27 is a proviso to s, 26 and makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime, irrespective of the question whether it is confessional or otherwise.
The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact 'which is the direct outcome of such information.
Secondly, only such portion of the information given as is distinctly connected with the said recovery is admissible against the accused.
Thirdly, the discovery of the fact must relate to the commission of some offence.
The embargo.
on statements of the accused before the police will not apply if all the above conditions are fulfilled.
If an accused ' charged with a theft of articles or receiving stolen articles, within the meaning of section 411 I.P.C. states to the police. 'I will show you the articles at the place where 1 have kept them ' and the.
articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact i.e. keeping of the articles by the accused at the place mentioned.
The discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place.
In principle there is no difference between the above statement and that made by the appellant in this case which in effect is that 'I will show you the.
person to whom 1 have given the diamonds exceeding 200 in number '.
The only difference between the two statements is that a 'named person ' is substituted for 'the place ' where the article is kept.
In neither case are the articles or the diamonds the fact discovered.
[338 C H] In the present case, the police had learnt earlier that the other accused had the custody of the diamonds.
Therefore, the statement of the appel 333 lant that the other accused had the custody of the diamonds would not be something unknown to the police so as to constitute 'a fact deposed to as discovered in consequence of information received ' from the appellant.
The discovery, if any, merely related to the whereabouts of the other accused.
There was no discovery of any fact deposed to by the appellant within the meaning of section 27.
If the police had not gone to the office of the newspaper and had not learnt of the complicity of the other accused with the crime, the statement of the appellant would amount to information received from him relating to the discovery of the diamonds in the custody of that other accused.
[343 B] Pulukuri Katayya vs King Emperor, 76 I.A, 65 and K. Chinnaswamy Reddy vs State of Andhra Pradesh, ; , referred to.


judgement:
Appeal No. 1575 of 1969.
Appeal by special leave from the judgment and order dated March 18, 1969 and May 8, 1969 of the Punjab and Haryana High Court in Civil Revision No. 1014 of 1968 and C.M. No. 1863 of 1969.
S.V. Gupte and Ravinder Narain, for the appellant.
K.R. Chaudhuri, for the respondents.
The Judgment of the Court was delivered by Dua, J.
By means of an agreement dated August 9, 1963, the appellant company agreed to purchase from the respondents, land measuring 264 kanals and 12 marlas.
A sum of Rs. 1,87,000 was.
paid as earnest money.
The sale deed was to be registered by April 30, 1964.
As it was not so registered, both parties blamed each other for the breach.
In May, 1966 the Government issued a notification under section 4 of the Land Acquisition Act which was followed by a notification under section 6 in September 1966 acquiring 104 kanals and 18 marlas of land out of the land agreed to be sold.
The Collector made an award of the compensation for the acquired land, against which a reference 370 was made to the Court of the District Judge.
In May, 1968 the compensation was enhanced to a sum over Rs. 2 lakhs.
In the mean time on April 15, 1967, the appellant,company instituted a suit for specific performance of the agreement dated August 9, 1968.
This suit was dismissed by the Court of the Senior Subordinate Judge, Gurgaon on August 13, 1968.
A Regular First Appeal (No. 216 of 1968) against the dismissal of the suit is pending in the Punjab and Haryana High Court.
It appears that the dispute as to apportionment of compensation under section 30 of the Land Acquisition Act was also referred to the Court.
In view of the institution of the suit for specific performance, an application was apparently made in the Court of the learned Additional District Judge dealing with the reference under the Land Acquisition Act to stay those proceedings pending the decision of the suit by the learned Senior Subordinate Judge.
On February 28, 1968 the learned Additional District Judge took the view that the entire matter in his Court was covered by the civil suit, it being further observed in the order that even the question of the jurisdiction of the Senior Subordinate Judge to determine the amount of compensation was to be first decided by the civil court.
On this view, the reference proceedings were stayed pending the decision of the civil court.
After the dismissal of the suit, the respondents applied to the Court of the learned Additional District Judge for continuing the proceedings and for making an order of payment of compensation in their favour.
This prayer was Contested by the appellant company on the ground that an appeal against the decree dismissing the suit had already been presented in the High Court and that the proceedings for payment of compensation should continue to remain stayed pending the disposal of the appeal.
The learned Additional District Judge after hearing both sides decided on August 30, 1969 to continue the order of stay pending the decision of the appeal by the High Court.
According to him, the question whether the original agreement had become frustrated or was alive and deserved to be specifically enforced, would have an important bearing on the question of apportionment of compensation.
The respondents preferred a revision to the High Court against this order and a learned Single Judge on March 18, 1969 reversed the order continuing stay of the proceedings under section 30 and further directed payment of Rs. 1,78,000 to the respondents.
The order of payment of this amount was framed in the following words : "I do feel that in view of the fact that the suit filed by the respondent company has been dismissed, prima facie, it is reasonable that the proceedings under section 30 of the Act should continue, but the petitioners may 371 not be allowed actual payment of more than Rs. 1,78,000.
The balance of the amount due in respect of the land of the petitioners shall be kept with the Government to be disbursed in accordance with the decision in the regular first appeal.
This will, however, be subject to the further condition that the petitioners will file an undertaking in this Court that they shall not dispose of or otherwise transfer any interest by creating any encumbrance over the balance of the land which was the subject matter of the agreement dated the 9th of August, 1963, without the permission of the Court.
Learned counsel for the petitioners appearing before me have agreed to this condition being imposed.
" The concluding portion of that order may also be reproduced: ". . . .
I accept this revision petition and direct that the proceedings under section 30 of the Act be continued, but the petitioners will not be paid more than Rs. 1,78,000 and the balance will remain undisbursed till the decision of the regular first appeal If the appeal is accepted, this amount shall be treated as part of the consideration that has to be paid by the respondent company.
Till the decision of the appeal or till further orders of this Court, the petitioners will not dispose of the balance of the land, which is the subject matter of the agreement, without the permission of the Court.
" Before the learned Additional District Judge, the question arose as to whether under the order of the High Court dated March 18, 1969, the sum of Rs. 1,78,000 was to be paid immediately or after the decision of the reference under section 30.
The parties apparently desired the learned Additional Judge to decide this question judicially on a consideration of the circumstances of the case.
Both parties were accordingly heard and the learned Additional District Judge in a detailed order dated April 19, 1969 expressed his conclusion thus : "To my mind it seems that the decision of the reference under section 30, is to take place first and it is thereafter that the applicants shall be paid amount upto Rs. 1,78,000.
In these circumstances, it is ordered that the proceedings u/s 30 be restored and should continue.
The cheque will be given only after the decision of the reference u/s 30.
The revision before the Hon 'ble Judge was only against the order staying the proceedings and there was no revision regarding the non payment of the amount as that was not the question before this court and no orders were passed by this court in that connec 372 tion.
As such, the intention of the Hon 'ble Judge in passing the orders Seems to be that the amount may not be paid to any of the parties now but after the decision of the reference u/s 30.
I order accordingly.
" The learned Additional District Judge.
also fixed May 21, 1969 .,for the evidence of the parties.
It appears that instead of challenging on merits the order dated April 19, 1969 in the High Court by way of revision, the respondents filed in that Court on May 6, 1969, an application under sections 151/141 C.P.C. for clarification of its order dated March 18, 1969.
This application was placed before the High Court for preliminary hearing on May 8, 1969 and the learned Single Judge recorded the following order without giving notice to the appellant : "My orders are clear that the amount of Rs. 1,78,000 may be paid to the petitioners.
The order further directs the petitioners not tO dispose any part of the land which was the subject matter of the agreement.
With these observations, this petition is filed.
" It is against these two orders that the present appeal by special leave has been presented and the short argument pressed by Shri Gupte was that the order of the High Court dated March 18, 1969 is unsustainable because there was no jurisdictional infirmity made out in the order of the learned Additional District Judge dated August 30, 1968, which would justify interference on revision under section 115 C.P.C.
In regard to the order dated May 8, 1969, it was further complained that this order was made ex parte without notice to the appellant.
It was contended by Shri Gupte that in face of the judicial order dated April 19, 1969 made by the learned Additional District Judge after hearing both sides at 'length, it was not open to the High Court to record the ex parte .order dated May 18, 1969 without affording to the appellant an opportunity for supporting the view.
taken by the learned Additional District Judge.
The submissions made by Shri Gupte, in our opinion, possess merit.
The revisional jurisdiction has been conferred on the High Court by section 115, C.P.C. in these terms : "115.
The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such Subordinate Court appears (a) to have exercised a jurisdiction not.
vested in it by law or (b) to have failed to exercise a jurisdiction so vested.
or 373 (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit.
" The mass or reported cases only serve to show that the High Courts do not always appreciate the limits of their jurisdiction under this section.
The legal position was authoritatively laid down by the Privy Council as far back as 1894 in Rajah Amir Hassan Khan vs Sheo Baksh Singh(1).
The Privy Council again pointed out in Balakrishna Udayar vs Vasudeva Aiyar(2) that this section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved.
This view was approved by this Court in Keshav Deo vs Radha Kissan(3) and has since been reaffirmed in numerous decisions.
The position thus seems to.
be firmly established that while exercising the jurisdiction under section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself.
Clauses (a) and (b) of this section on their plain reading quite clearly do not cover the present case.
was not contended, as indeed it was not possible to contend, that the learned Additional District Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him, in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question.
Clause (c) also does not seem to apply to the case in hand.
The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached.
The errors contemplated by this clause may, in our view, relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to.
errors either of fact or of law, after the prescribed formalities have been complied with.
The High Court does not seem to have adverted to the limitation imposed on its power under section 115 of the Code.
Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal, could hardly justify interference on revision under section 115 of the Code when there.
was no illegality or material irregularity committed by the learned Additional District Judge in his manner of dealing with this question.
It seems to us that in this matter the High Court treated the revision virtually as if it was an appeal.
(1) 11 Indian Appeals 237.
(2) 44 Indian Appeals 261.
L2 Sup.
CI/70 12 (3) ; 374 The respondents submission that the order made by the High Court on March 18, 1969 was a consent order, is unsustainable.
The agreement mentioned in that order is obviously the agreement by the respondents (petitioners in the High Court) to the condition imposed on them, to file an undertaking in that Court not to.
dispose of or ,otherwise transfer any interest by creating encumbrance over the remaining land which, was the subject matter of the agreement dated August 9, 1968, without the previous permission of the Court.
There is nothing in the order of the High Court or on the record to which our attention was drawn, showing or even suggesting that the appellant had agreed to the revision being allowed.
The order of the High Court dated March 18, 1969 must, therefore, be set aside.
The ex parte order dated May 8, 1969 is equally difficult to sustain.
In para 5 of the respondents application dated May 6, 1969 under section 151/141 Civil P.C. presented in the High Court, a reference was clearly made to the order passed by the learned Additional District Judge on April 19, 1969.
It was averred in this paragraph : "That the learned District Judge by his order dated 19 4 69, has interpreted the High Court 's order wrongly and has held that the intention of the Hon 'ble Judge in passing the order dated 18 3 69, seemed to be that the amount may not be paid to any of the parties now but only after the decision of the reference under Section 30 of the Land Acquisition Act.
Thus he has fixed the case under Section 30 of the Act for evidence on 21 5 69.
" It seems that at the stage of preliminary hearing the attention of the High Court was not drawn to this fact and that Court proceeded to make an order virtually and in effect reversing the judicial order made by the learned Additional District Judge in favour of the appellant.
This could more appropriately be done only on appeal or revision from the order dated April 19, 1969 after notice to the party affected and not on an application under sections 151/141 Civil P.C. Such an application in the circumstances was misconceived.
The ex parte order is thus unsustainable and must be set aside.
This appeal accordingly succeeds and the impugned orders are set aside with costs.
We would like to make it clear that it will be open to the parties, if so advised, to approach the High Court by appropriate proceedings for the speedy disposal of the appeal.
R.K.P.S. Appeal allowed.

summary:
The appellant company filed a suit against the respondents in the court of the Senior Subordinate Judge, Gurgaon, for the specific performance of an agreement for the purchase of ' certain land by the company from the respondents.
Part of the land in question became the subject of proceedings under the Land Acquisition Act, 1894, and dispute relating to compensation was referred to the Court of the District Judge.
The court fixed the compensation at over Rs. 2 Iakhs.
A dispute as to apportionment of the compensation was also.
referred under section ' 30 of the Land Acquisition Act to the court but the proceedings were stayed by the Additional District Judge, pending decision of the suit for specific performance by the Senior Subordinate Judge.
The suit was dismissed and thereupon the respondents applied to the Additional District Judge for continuation of proceedings under section 30 and for payment of compensation to them.
The appellant company resisted the application on the ground that it had filed an appeal in the High Court against the decree of the Senior Subordinate Judge.
The Additional District Judge after hearing both parties stayed the proceedings under section 30 pending disposal of the company 's appeal by the High Court.
On a revision application under section 115 C.P.C. filed by the respondents, the High Court ordered on March 18, 1969 that a sum of not more than Rs. 1,78,000 out of the compensation for the acquired land be paid to the respondents who must undertake not to sell the rest of the land during the pendency of the appeal.
The Additional District Judge after hearing the parties judicially interpreted the order to.
mean that Rs. 1,78.000 were to be paid to the respondents after the conclusion of the proceedings under ' section 30.
The respondents again moved the High Court with an application under section 151/141 C.P.C. for a clarification of its earlier order whereupon by order dated May 8, 1969 the High Court ordered immediate payment.
The company challenged the High Court 's orders dated March 18, 1969 and May 8, 1969 in an appeal before this Court.
It was contended on its behalf that in making its first order the High Court exceeded its jurisdiction u/s 115 C.P.C. and in making the clarificatory order ex parte it violated the rules of natural justice.
HELD: (i) The position is firmly established that while exercising its jurisdiction under section 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the errors have relation to the jurisdiction of the Court to try the dispute itself.
Clauses (a) and (b) o.f this section on their plain reading quite clearly did not cover the present case because it had not been shown that the learned Additional Sessions Judge had either exercised a jurisdiction not vested in him by law or had failed to exercise a jurisdiction so vested in him in recording the order that the proceedings under reference be stayed till the decision of the appeal by the High Court in the proceedings for specific performance of the agreement in question.
Clause (c) of the section also did not apply 369 to the present case.
The words "illegally" and "with material irregularity" as used in this clause do not cover either errors of fact or of law; they do not refer to the decision arrived at but merely to the manner in which it is reached.
The errors contemplated by this clause may relate either to breach of some provision of law of to material defects of procedure.
affecting the ultimate decision, and not to errors of either fact or of law, after the prescribed procedure has been complied with.
[375 D G] The High Court had not adverted to the limitation imposed on its power under section 115 of the Code and had treated the revision as if it was an appeal.
Merely because the High Court would have felt inclined, had it dealt with the matter initially, to come to a different conclusion on the question of continuing stay of the reference proceedings pending decision of the appeal could hardly justify interference on revision under section 115 of the Code when there was no illegality or material irregularity committed by the Additional Sessions Judge in his manner of dealing with the question.
The order of the High Court dated March 18, 1964 had therefore to be set aside.
[375 F H] Rajah Amir Hassan Khan vs Sheo Baksh Singh, I I Indian Appeals 237: Balakrishna Udayar vs Vasudeva Aiyar, 44 Indian Appeals 261; Keshav Deo vs Radha Kissan. ; applied.
(ii) The ex parte order dated May 8 1969 was equally difficult to sustain.
The High Court had proceeded to make an order virtually and in effect reversing the judicial order made by the learned Additional Judge in favour of the appellant.
This could, more appropriately be done only on appeal or revision after notice to the party affected and not on an application under sections 151/141 C.P.C. Such an application in the.
circumstances was misconceifed.
[376 C, F]