judgement:
iminal Appeal No. 213 of 1960.
Appeal by special leave from the judgment and order dated March 24, 1960, of the Punjab High Court (Circuit Bench)Delhi in Criminal Appeal Case No. 41 D of 1958.
H. L. Anand, and K. Baldev Mehta, for the appellant.
V. D. Mahajan and P. D. Menon, for the respondent.
November 29.
The Judgment of the Court was delivered by 587 SUBBA RAO J.
This appeal by Special leave raises the question as to the true meaning of the expression "fraudulently ' in section 464 of the Indian Penal Code.
The facts either admitted or found by the courts below may be briefly stated.
The appellant is the wife of Siri Chand Kaviraj.
On january 20, 1953, she purchased an Austin 10 Horse Power Car with the registration No. DLA.
4796 from Dewan Ram Swarup in the name of her minor daughter Nalini aged about six months at that time.
The price for the car was paid by Dr. Vimla.
The transfer of the car was notified in the name of Nalini to the Motor Registration Authority.
The car at that time was insured against a policy issued by the Bharat Fire & General Insurance Co., Ltd., and the policy was due to expire sometime in April, 1953.
On a request made by Dewan Ram Swarup, the said policy was transferred in the name of Nalini.
In that connection, Dr. Vimla visited the Insurance Company 's Office and signed the proposal form as Nalini.
Subsequently, she also filed two claims on the ground that the car met with accidents.
In connection with these claims, she signed the claim forms as Nalini and also the receipts acknowledging the payments of the compensation money as Nalini.
On a complaint made by the company alleging fraud on the part of Dr. Vimla and her husband, the police made investigation and prosecuted Dr. Vimla and her husband Siri Chand Kaviraj in the Court of Magistrate 1st Class Delhi.
The 'Magistrate committed Dr. Vimla and her husband to Sessions to take their trial under sections 120 B, 419, 467 and 468 of the Indian Penal Code.
The learned Sessions judge held that no case had been made out against the accused under any one of those sections and on that finding, acquitted both of them.
The State preferred an appeal to the High Court of Punjab and the appeal was disposed of by a Division Bench of that court comprising Falshaw 588 and Chopra,JJ.
The learned judges confirmed the acquittal of Siri Chand; but in regard to Dr.
Vimla, they confirmed her acquittal under section 419 of the Indian Penal Code, but set aside her acquittal under sections 467 and 468 of the Code and instead, convicted her under the said sections and sentenced her to imprisonment till the rising of the court and to the payment of a fine of Rs. 100/ or in default to under , go simple imprisonment for two weeks.
Dr. Vimla has preferred the present appeal by special leave against her conviction and sentence.
The facts found may be briefly summarised thus : Dr. Vimla purchased a motor car with her own money in the name of her minor daughter, had the insurance policy transferred in the name of her minor daughter by signing her name and she also received compensation for the claims made by her in regard to the two accidents to the car.
The claims were true claims and she received the moneys by signing in ,he claim forms and also in the receipts as Nalini.
That is to say, Dr. Vim] a in fact and in substance put through her transactions in connection with the said motor car in the name of her minor daughter.
Nalini was in fact either a benamidar for Dr. Vimla or her name was used for luck or other sentimental considerations.
On the facts found, neither Dr. Vimla got any advantage either pecuniary or otherwise by signing the name of Nalini in any of the said documents nor the Insurance Company incurred any loss, pecuniary or otherwise, by dealing with Dr. Vimla in the name of Nalini.
The Insurance Company would not have acted differently even if the, car stood in the name of Dr. Vimla and she made the claims and received the amounts from the insurance company in her name.
On the said facts, the question that arises in this case is whether Dr. vimla was guilty of offences under sections 463 and 464 of the Indian Penal Code.
589 Learned Counsel for the appellant contends that on the facts found, the appellant would not be guilty of forgery as she did not "fraudulently" sign the requisite forms and the receipts in the name of Nalini, as.
by so signing, she did not intend to cause injury to the insurance company.
In other words, the contention was that a person does not act fraudulently within the meaning of section 464 unless he is not only guilty of deceit but also he intends to cause injury to the person or persons deceived, and as in the present case the appellant had never had the intention to cause injury to the insurance company and as on the facts found no injury had been caused at all to the company, the appellant could not be found guilty under the said sections.
Before we consider the decisions cited at the Bar it would be convenient to look at the relevant provisions of the Indian Penal Code.
Section 463 : Whoever makes any false document or part of a document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.
Section 464 : A person is said to make a false document First Which dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document/or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time 590 at which he knows that it was not made, signed, scaled or executed; or The definition of "false document" is a part of the definition of "forgery".
Both must be read together.
If so read, the ingredients of the offence of forgery relevant to the present enquiry are as follows , (1) fraudulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another or under his authority ; (2) making of such a document with an intention to commit fraud or that fraud may be committed.
In the two definitions, both mens rea described in s.464 i. e., "fradulently" and the intention to commit fraud in section 463 have the same meaning.
This redundancy has perhaps become necessary as the element of fraud is not the ingredient of other in tentions mentioned in section 463.
The idea of deceit is a necessary ingredient of fraud, but it does not exhaust it; an additional element is implicit in the expression.
The scope of that something more is the subject of may decisions.
We shall consider that question at a later stage in the light of the decisions bearing on the subject.
The second thing to be noticed is that in section 464 two adverbs, "dishonestly" and "fraudulently" are used alternatively indicating thereby that one excludes the other.
That means they are not tautological and must be given different meanings.
Section 24 of the Penal Code defines "dishonestly" thus : "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly".
"Fraudulently" is defined in section 25 thus: " A perosn is said to do a thing fraudulently if he does that thing with intent to 591 defrand but not otherwise".
The word "defraud" includes an element of deceit.
Deceit is not an ingredient of the definition of the word "dishonestly" while it is an important ingredient of the definition of the word "fraudulently".
The former involves a pecuniary or economic gain or loss while the latter by construction excludes that element.
Further) the juxtaposition of the two expressions " 'dishonestly" and "fraudulently" used in the various sections of the Code indicates their close affinity and therefore the definition of one may give colour to the other.
To illustrate, in the definition of "dishonestly", wrongful gain or wrongful loss is the necessary enough.
So too, if the expresssion "fraudulently ' were to be held to involve the element of injury to the person or persons deceived, it would be reasonable to assume that the injury should be something other than pecuniary or economic loss.
Though almost always an advantage to one causes loss to another and vice versa, it need not necessarily be so.
Should we hold that the concept of fraud" would include not only deceit but also some injury to the person deceived, it would be appropriate to hold by analogy drawn from the definition of "dishonestly" that to satisfy the definition of " 'fraudulently" it would be enough if there was a non economic advantage to the deceiver or a non economic loss to the deceived.
Both need not co exist.
Let us now consider some of the leading text book writers and, decisions to ascertain the meaning of the word "fraudulently".
The classic definition of the word "fraudulently" is found in Steplien 's History of the Criminal law of England, Vol. 2, at p. 121 and it reads "I shall not attempt to construct a definition which will meet every case which might 592 be suggested, but there is little danger in saving that whenever the words "fraud" or intent to defraud" or "fraudulently" occur in the definition of a crime two elements at least are essential to the commission of the crime : namely, first, deceit or an intention to deceive or in some cases mere secrecy ; and secondly, either actual injury or possible injury or to a risk of possible 'injury by means of that deceit or secrecy. . .
This intent is very seldom the only, or the principal, intention entertained by the fraudulent person, whose principal object in nearly every case is his own advantage. . . .
A practically conclusive test of the fraudulent character of a deception for criminal purposes is this : Did the author of the deceit derive any advantage from it which could not have been had if the truth had been known ? If so it is hardly possible that the advantage should not have had an equivalent in loss or risk of loss to someone else, and if so, there was fraud.
" It would be seen from this passage that " 'fraud" is made up of two ingredients, deceit and injury.
The learned author also realizes that the principal object of every fraudulent person in nearly every case is to derive some advantage though such advantage has a corresponding loss or risk of loss to another.
Though the author has not visualized the extremely rare situation of an advantage secured by one without a corresponding loss to another, this idea is persued in later decisions.
As regards the nature of this injury, in Kenny 's Outline of Criminal Law, 15th Edn., at p. 333, it is stated that pecuniary detriment is unnecessary.
In Haycraft vs Creasy (1) LeBlanc, observed (1) ; 593 "by fraud is meant an intention to deceive; whether it be from any expectation of advantage to the party himself or from the ill will towards the other is immaterial.
" This passage for the first time brings out the distinction between an advantage derived by the person who deceives in contrast to the loss incurred by the person deceived.
Buckley.
J., in Re London & Clobe Finance Corporation Ltd. (1) brings out the ingredients of fraud thus : "To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false.
defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury ' More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action." The English decisions have been elaborately considered by the Court of Criminal Appeal in R. vs Welhant (2).
In that case, hire purchase finance companies advanced money on a hire purchase form and agreement and on credit sale agreements witnessed by the accused.
The form and agreements were forgeries The accused was charged with offences of Uttering forged documents with intent to defraud.
It was not proved that he had intended to cause any loss of once to the finance companies.
His intention had been by deceit to induce any person who was charged with the duty of seeing that the credit restrictions then current were observed to act in a way in which lie would not act if he had known the true facts, namely, not to prevent the advancing of large sums of money exceeding the limits allowed by law It, the time.
The Court held that the said intention amounted to intend to defraud.
(1) (1903) 1 ch. 732.
(2) , 264, 266.
594 Hilbery, J., speaking for the court, pointed out the distinction between deceit and defraud and came to the conclusion that ,to defraud" is to deprive by deceit." Adverting to the argument that the deprivation must be something of value, i. e. economic loss, the learned judge observed "We have, however, come to the conclusion that this is too narrow at view.
While, no doubt, in most cases of an intention to defraud the intention is to cause an economic loss ' there is no reason to introduce any such limitation.
Provided that the intention is to cause the person deceived to act to his real detriment, it matters not that lie suffers no economic loss.
It is sufficient if the intention is to deprive him of a right or to induce him to do something contrary to what it would have been his duty to do, had lie not been deceived.
" On the basis of the said principle it was held that the accused by deceit induced the finance companies to advance moneys contrary to the credit restrictions and that he was guilty of the offence of forgery.
This decision is therefore a clear authority for the position that the loss or, the injury caused to the person deceived need not be economic loss.
Even a deprivation of a right without any economic consequences would be enough.
This decision has not expressed any definite opinion on the question whether a benefit to the accused without a corresponding loss to the person deceived would amount to fraud.
But it has incidentally touched upon that aspect.
The learned judge again observed. ". . . . . .
This the appellant was doing in order that he might benefit by getting further loans.
" This may indicate that a benefit derived by the 595 person deceiving another may amount to an act to defraud that other.
A full Bench of the Madras High Court , in Kotamraju Venkatrayadu vs Emperor (1) had to consider the case of a person obtaining admission to the matriculation examination of the Madras University as a private candidate producing to the Registrar a certificate purporting to have been signed by the headmaster of it recognized High School that he was of good character land had attained his 20th year.
It was found in that case that the candidate had fabricated the signature of the headmaster.
The court held that the accused was guilty of forgery.
White, C.J., observed : "Intending to defraud means, of course, something more than deceiving." He illustrated this by the following example: "A tells B a lie and B believes him.
B is deceived but it does not follow that A intended to defraud B.
But, as it seems to me, if A tells B a lie intending that B should do something which A conceives to be to his own benefit or advantage, 'and which, if done, would be to the loss or detriment of B, A intends to defraud B." The learned Chief justice indicated his line of thought, which has some bearing on the question now raised, by the following observations : "I may observe, however, in this connection that by section 24 of the Code a person does a thing dishonestly who ' does it with the intention of causing wrongful gain or wrongful loss.
It is not necessary that there should be an intention to cause both.
On the analogy of this definition, it might be said that either an intention (1) Mad.
99,96,97.
596 to secure a benefit or advantage on the one hand, or to cause loss or detriment on the other, by means of deceit, is an intent to defraud.
" But, he found in that case that both the elements were present.
Benson,J., pointed out at p. 114 : "I am of opinion that the act was fraudulent not merely by reason of the advantage which the accused intended to secure for himself ' by means of his ' deceit, but also by reason of the injury which must necessarily result to the University and, through it to the public from such acts if unrepressed.
The University is injured, if through the evasion of its byelaws, it is induced to declare that certain persons have fulfilled the conditions prescribed for Matriculation and are entitled to the benefits of Matriculation, when in fact, they have not fulfilled those conditions, for the value of its examinations is, depreciated in the eyes of the public if it is found that the certificate of the University that they have passed its examinations is no longer a guarantee that they have in truth fulfilled the conditions on which alone the University professes to certify them as passed, and to admit them to the benefis of Matriculation.
" Boddam, J., agreed with the learned Chief justice and Benson, J.
This decision accepts the principle laid down by Stephen, namely, that the intention to defraud is made up of two elements, first an intention to deceive and second, the intention to expose some person either to actual injury or risk of possible injury but the learned judges were also inclined to hold on the analogy of the definition of "dishonestly" in section 24 of the Code that intention to secure a or advantage to the deceiver satisfies the second con dition 597 The Calcutta High Court dealt with this question in Surendra Nath Ghose vs Emperor (1) There, the accused affixed his signature to a kabuliat which was not required by law to be attested by witnesses, after its execution and registration, below the names of the attestings witnesses but without putting a date or alleging actual presence at the time of its execution.
The court held that such an act was not fraud within the first clause of section 464.
of the Penal Code inasmuch as it was not done dishonestly or fraudulently within the meaning of sections 24 and 25 thereof.
Mookerjee, J., defined the words "intention to defraud" thus: "The expression, "intent to defraud" implies conduct coupled with intention to deceive and thereby to injury in other words, "defraud" involves two conceptions, namely, deceit and injury to the person deceived, that is, infringement of some legal right possessed by him, but not necessarily deprivation of property.
" This view is in accord with the English decisions and that expressed by the Full Bench of the Madras High Court.
This decision does not throw any light on the other question whether advantage to the deceiver without a corresponding loss to the deceived would satisfy the second ingredient of the expression "intent to defraud".
A division Bench of the Bombay High Court in Sanjiv Ratnappa vs Emperor (2) had also occasion to consider the scope of the expression "fraudulently" in section 464 of the Penal Code.
The court held that for an act to be fraudulent there must be some advantage on the one side with a corresponding loss on the other.
Adverting to the argument that an advantage secured by the deceiver would constitute fraud Broomfield, J., observed thus "I think in view of the Bombay decisions to which I have referred we must hold that that (1) Cal. 75, 89 90.
(2) A.I.R. 1932 Bom.
545, 550.
598 is an essential ingredient in the definition of forgery.
In the great majority of cases, the point is not very material. . .
But there many occasionally be a case in which the element of loss or injury is absent and I think the present is such a case.
" This decision therefore does not accept the view of White C. J., of the Madras High Court.
A Division Bench of the Lahore High Court,, in Emperor vs Abdul had also expressed its view on the meaning of the word "fraudulently." The learned Judges accepted Stephen 's definition but proceeded to observe as follows "It may be noted in this connection that the word " 'injury" as defined in section 44, Penal Code, is very wide as denoting "any harm whatever, illegally caused to any person, in body, mind, reputation or property." The learned judges were willing to assume that in almost every case an advantage to one would result in an injury to the other in the widest sense indicated by section 44 of the Penal Code.
The other decided case cited at the Bar accept the necessity for the combination of a deceit by one and injury to other constitute an act to defraud and therefore, it is not necessary to multiply citations.
No other decision cited at the Bar throws any light on the further question, namely, whether an advantage secured to the deceiver without a corresponding loss to the deceived would satisfy the second condition laid down by the decisions.
To summarize : the expression " 'defraud" inoslves two elements, namely, deceit and injury to the person deceived.
injury is something other than (1) A.I.R. 1944 Lah.
380,382.
599 economic loss that is ', deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others.
In short, it is a non economic or non pecuniary loss.
A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived.
Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
Now let us apply the said principles to the facts of the present case.
Certainly, Dr. Vimla was guilty of deceit, for though her name was Vimla, she signed in all the relevant papers as Nalini and made the insurance company believe that her name was Nalini, but the said , deceit did not either secure to her advantage or cause any non economic loss or injury to the insurance company.
The charge does not disclose any such advantage or injury, nor is there any evidence to prove the same.
The fact that Dr. Vimla said that the owner of the car who sold it to her suggested that the taking of the sale of the car in the name of Nalini would be useful for income tax purposes is not of any relevance in the present case, for one reason, the said owner did not say so in his evidence and for the other, it was not indicated in the charge or in the evidence.
In the charge framed, she was alleged to have defrauded the insurance company and the only evidence given was that if it was disclosed that Nalini was a minor, the insurance company might not have paid the money.
But as we have pointed out earlier, the entire transaction was that of Dr. Vimla and it was only put through in the name of her made minor daughter for reasons best known to herself.
On the evidence as disclosed, neither was she benefited nor the insurance company incurred loss in any sense of the term.
In the result, we allow the appeal and hold that the appellant was not guilty of the offence under 600 sections 467 and 468 of the Indian Penal Code.
The conviction and sentence passed on her are set aside.
Fine, if paid, is directed to be refunded to the appellant, Appeal allowed.

summary/full:
Dr. Vimla purchased a car in the name of her minor daughter Nalini aged about 6 months.
The price of tile car was paid by her.
The transfer of the car was notified in the name of Nalini to the Motor Registration Authority.
The insurance policy already issued was transferred in the name of Nalini after the proposal form was signed by Dr. Vimla.
Subsequently, Dr. Vimla filed two claims on the ground that the car met with accidents.
She signed the claim forms as Nalini.
She also signed the receipts acknowledging the pay ment of compensation money as Nalini.
Dr. Vimla and her husband were prosecuted under sections 120 B, 419, 467 and 468 of the Indian Penal Code.
Both the accused were acquitted by the Sessions Judge.
The State went in appeal and the High Court convicted Dr. Vimla under section 467 and 468 of the Indian Penal Code.
Dr. Vimla came to this Court by special leave.
Held, that appellant was not guilty of the offence under section 467 and 468 of the Indian Penal Code.
She was certainly guilty of deceit because though her name was Vimla, she signed in all the relevant papers as Nalini and made the Insurance Company believe that her name was Nalini, but the said deceit did not either secure to her advantage or cause any noneconomic loss or injury to the Insurance Company.
The charge did not disclose any such advantage or injury nor was there any evidence to prove the same.
The entire transaction was that of Dr. Vimla and it was only put through in the name of her minor daughter.
Nalini was in fact either a Benamidar for Dr. Vimla or her name was used for luck or other sentimental considerations.
The Insurance Company would not have acted differently even if the car stood in the name of Dr. Vimla.
586 The definition of 'false document ' is a part of the defini tion of forgery ' and both must be read together.
If so read, the ingredients of the offence of forgery relevant to the present case are as follows: (1) fradulently signing a document or a part of a document with an intention of causing it to be believed that such document or part of a document was signed by another under his authority ; and (2) making of such a document with an intention to commit fraud or that fraud may be committed.
The expression 'fraud ' involves two elements, deceit and injury to the person deceived.
Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include and any harm whatever caused to any person in body, mind, reputation or such others.
In short, it is a non economic or non pecuniary loss.
A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived.
Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
Haycraft vs Creasy, ; , in re.
London and Globe Finance Corporation Ltd., R. vs Welham, , Kotamraju Yenkatrayadu vs Emperor Mad. 90, Surendra Nath Ghose vs Emperor, Cal. 75, Sanjiv Ratnappa vs Emperor, A. I. R. and Emperor vs Abdul Hamid, A. 1.
R. , referred to.


judgement:
Appeal No. 523 of 1960.
Appeal from the judgment and order dated December 5, 1957 of the former Madhya Pradesh High Court at Nagpur in First Appeal No. 1 12 of 1952.
C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar, B. R. O. K. Achar and K. L. Hathi, for the Appellants.
419 M. C. Setalvad, Attorney General for India, J. B. Dadachanji, o. c. mathur and Ravinder Narain, for the Respondents.
November, 22.
The judgment of the Court was delivered by DAS GUPTA, J.
There exists at Raipur in Madhya Pradesh an old Math by the name of Dudhadhari Math within which is a temple where the idols of Shri Ramchandra, Sita, Laxman, Bharat, Satrughan and Hanumanji have been worshipped for very many years.
For the expenses of the worship of the deities and for the upkeep of the temple.
, one village by the name of Hirmi was dedicated by Dinanath Sao, a wealthy inhabitant of the locality.
The main controversy in the present litigation is whether another village of the name of Telibandha which also belonged to Dinanath was dedicated absolutely to the temple either by Dinanath Sao himself or later on by his descendants.
The two appellants, both descendants of Dinanath Sao brought the present suit under section 92 of the Code of Civil Procedure, 1908, for removal of the respondent Kamal Narayan, another descendant of Dinanath Sao, from the office of trustee of the God Shri Ramchandraji Swamy for the village of Telibandha and for accounts.
The appellant 's case in the plaint was that Telibandha was dedicated to the temple of Shri Ramchandraji as early as 1857 by Dinanath Sao himself and later on in the year 1896 when a partition took place between his descendants who were up till that time living jointly, all the coshares not only re affirmed the dedication made by Dinanath Sao of this village of Telibandha but themselves dedicated the village Telibandha to the deities in this temple by accepting the award made by the Panchas.
420 Dinanath died in 1862, leaving his two sons Sobharam and Keshoram.
Sobha Ram had three sons, Sarjoo Prasad, Gokul Prasad and jamna Prasad; Keshoram had also three sons, Ramdin, Gajanand and Nand Kishore.
At the time of the partition in 1896 Sarjoo Prasad was dead and the parties to the partition were Sarjoo Prasad 's four sons, Ram Saran Lal, Ramhirde, Ram Krishna and Ramanuj, representing Sarjoo Prasad 's branch and the other five grand sons of Dinanath.
The first appellant Ram Kishore is the son of Nand Kishore Sao, while thesecond appellant, Ramanuj is Sarojoo Prasad 's son.
The respondent is the son of Ram Saran Lal.
By the awardof 1896, it is the plaintiffs ' case, Ram Saran Lal was not given any proprietary interest in the village Telibandha but was merely made the Manager on behalf of the deities for this property.
On Ram Saran Lal 's death in 1930, Kamal Narayan, his son became the trustee.
According to the plaintiffs the temple was a public temple and the trust a public trust ' The plaintiffs allege that Kamal Narayan committed several breaches of trust by the sale of certain lands of Mouza Telibandha for the sum of Rs. 1,06,774/1/ and in other ways.
The plaintiffs first approached the Court of the Additional District judge, Raipur with a petition under section 3 of the Chartiable and Religious Trusts Act for directions on Kamal Narayan as provided in that section.
Directions were accordingly issued by the Additional District judge; but with this the respondent did not comply.
It was then that the present suit was brought by the plaintiffs without the previous consent of the Advocate General as is permitted by section 6 of the Charitable and Religious Trusts Act.
The plaintiffs have prayed for a declaration that Telibandha village was held by the defendant in the trust for Shri Ramchandra of the Dudhadhari Math and that he had committed breaches of such trust; for his 421 removal from the position of a trustee and for appointment of the first plaintiff in his place; for an order on him to render accounts since 1936 and to deposit Rs. 1,06,774/1/ which he got as sale proceeds.
The defendant denied that Telibandha was ever dedicated.
As regards the Award of 1896 his plea was that it (lid not express accurately the decision of the Arbitrators an that, in any case, it was superseded by the Award of Mr. Bagchi on May 14, 1898, which was accepted by all the co sharers as the actual settlement of their own and on the basis of which a suit brought to challenge the validity of the earlier award was dismissed as compromised.
The defendant 's case is that there was no trust, either express or constructive, created at any time by any one in respect of Telibandha village ; that neither he nor his father was trustee in respect of this village and there was no breach of trust by him.
To explain his possession of the village the defendant referred to a partition in 1901 between Sarjoo Prashad 's four sons, on the one hand and jamuna Prasad, on the other, at which, it was said, that Telibandha fell to the share of Sarjoo Prasad 's four sons.
Thereafter in 1913, there was a further partition between Sarjoo Prasad 's four sons and the defendant at which Telibandha was allotted to defendant 's father Ramsaranlal alone.
On a consideration of the evidence the Trial Court held that there had been a valid dedication in respect of the village Telibandha for the Temple of Shri Ramchandra Swamy.
It was not satisfied that the dedication had been made by Dinanath himself but held that there was such a dedication sometime before 1896 and that that dedication was confirmed by all the co sharers at the time of the partition of 1896.
As regards the Bagchi Award, the learned judge was of opinion that it did purport to revoke 422 the dedication and to allot the village to the members of one branch of the family with only a moral obligation to look after the temple but this later Award had all along remained a dead letter and did not affect the Panch Faisla Award of 1896.
The Trial Court held that a valid trust had been created in favour of the temple and it was a public religious trust, as Shri Ramchandra temple, for which the trust was created, was a public institution.
The Court found that the defendant was the trustee of this public trust, and had committed breaches of trust by transferring trust properties and appropriating its proceeds and finally by his express repudiation of this trust and was therefore liable to be removed.
Accordingly, it passed a decree declaring that defendant No. 1 had committed breaches of trust as a trustee of the village Telibandha for the temple of Shri Ramchandra Swamy and removing the defendant from the office of the trustee.
By the decree the Court also directed the defendant to deposit a sum of Rs.1,06,774/1/ in Court.
The first plaintiff Ram Kishore Lal was appointed the trustee in place of the defendant.
It was also ordered that a commissioner would be appointed later on to enquire into the alienations made by the defendant and to take accounts of the trust from the year 1936.
On appeal by the defendant, the High Court of judicature at Nagpur has set aside the judgment and decree of the Trial Court and ordered the dismissal of the suit.
The High Court was of opinion that the dedication of the village Telibandha had not been proved.
The High Court agreed with the Trial Court that dedication by Dinanath Sao himself, by a Patha in 1857 as alleged in the plaint had not been established ; but disagreeing with the Trial Court, it held that there was no absolute dedication of the village for the purpose of the temple by the Panch Faisla Award of 1896 and no trust was created thereby.
On a construction of this document the 423 learned judges of the High Court held that it did not show more than a partial dedication of the village as distinguished from an absolute dedication.
Accordingly, the High Court allowed the appeal and ordered the suit to be dismissed without going into the other questions as regards the character of the temple or whether the defendant had committed breaches of trust.
Against this decision of the High Court the present appeal was filed by the plaintiffs on a certificate granted by the High Court under article 133 (1) (b) of the Constitution.
The main controversy before us is whether by the Punch Faisla Award of 1896 an absolute dedication of the village Telibandha was made in favour of Shri Ramchandra Swamy temple or whether the village was given in full proprietorship to Ramsaran Lal with only a charge on it to meet the expenses of the temple.
The relevant portion of the Award is in its second paragrah.
The Award is in Hindi and the second paragraph has been translated thus : "2.
Mouza Telibandha alias Karawatoti, sixteen annas, Asli Men Dakhli (i. e. village proper with the out skirts under control), in tahsil Raipur together with all rights and interests of proprietorship has been given to Ramsaranlal with the consent of and at the instance of all the co shares for the under mentioned purposes.
From the profits and income of mouza Telibandha, Ramsaran Lal shall incur the expenses of Samaiyas (probably occasions), celebrations, Bho Rag, Bal Bhog of daily routine and white washing and plastering, etc., and other work of Shri Ramchandra Swami Math Shri Dudhadharji, according as the same expenses have been continuing to be met up to this day from the time of Dinanath Sao, Sobharam Sao and Sarjoo Prasad Sao.
If this work 424 that is being done from long before, fails to be done, then out of all these six co shares, any co sharer, who may be fit to do that work and carry it on, shall take this Mouza Telibandha together with all rights and interests into his possession and carry on the work of the temple just as it has continued to be done from ever.
None of the co shares and Ramsaranlal have any right over it.
Ramsaranlal or any other co sharers have neither got, nor will they have, any right to transfer, either in whole or in part, Mouza Telibandha, proper, together with Dakhli, together with all the rights and privileges, by sale or mortgage or gift or will or in any other manner whatsoever, because mouza Felibandha has been reserved from ever for the aforesaid purpose and it shall continue to be so only.
" The decision of the question before us depends on the proper construction of this paragraph of the Panch Faisala.
It is necessary to mention that the words ""together with all rights and interests of proprietorship" in the translation stand for "Kul haq haquq samet milkiyat ke" of the original; and the words " 'from the profits and income of Mouza Telibandha" in the translation stand for "Telibandha ke munafa wo amdani se" of the original.
The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense.
To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used.
Very often the status and the training of the parties using the words have to be taken into 425 consideration.
It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances.
Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing.
Sometimes ' it happens in the case of documents as regards disposition of properties, whether they are testamentary or nontestamentary instruments, that there is a clear conflict between what is said in one part of the document and in another.
A familiar in stance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion.
What is to be done where this happens ? If is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given.
(See Sahebzada Mohd. Kamgar Shah vs Jagdish Chandra Deo Dhabal Deo).
(1) It is clear, however, that an attempt should always be made to read the two parts of the document harmoniously, if possible.
It is only when this is not possible, e. g., where an absolute title is given is in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.
Turning now to para.
2 of the Panch Faisala, we find that the opening clause while providing for giving the village Telibandha to Ramsaran Lal uses the words "Kul haq haquq samet milkiyat ke.
" It has been contended by the learned AttorneyGeneral on behalf of the respondent that these words (1)(1960) 3 S.C.R. 604, 611. 426 show an intention to give an absolute interest of ownership in the property to Ramsaran Lal.
Accordingly, argues the learned Attorney General, the later provisions in the paragraph which seem to indicate that such absolute right was not given have to be ignored as an ineffective attempt to take away what has already been given.
Neither the words " none of the co sharers and Ramsaran Lal have any right over it" nor the prohibition against the alienations in the following clause, nor the words "Telibandha has been reserved for ever for the aforesaid purposes and it shall continue to be so only" can,it is argued, limit the amplitude of what is given to Ramsaran Lal by the opening clause.
The question therefore is : Does the use of the words "Kul haq haquk samet milkiyat ke" invariably show an intention to give full and absolute ownership ? We do not think so.
The question as to the meaning to be attached to the word ""Malik" (from which the word "Milkiyat" has been derived) and "Milkiyat" have often been considered by the courts.
A consideration of the pronouncements of the Privy Council on this question leave no doubt that while ordinarily an intention to give an absolute and full ownership is expressed by the words "Malik" or "Milkiyat" by saying that somebody is to be the Malik or is to have the Milkiyat, this is not invariably so.
In lalit Mohan Singh Roy vs Chukkun Lal Roy (1) where the words of the gift to the appellant were "shall become owner (Malik) of all my estates and properties", it was held that they were sufficient to convey a heritable and alienable estate unless the context indicated a different meaning.
In Surajmani vs Rabi Nath Ojha (2) also the use of the word "Malik" was held to import full proprietary rights, unless there is something in the context to qualify it.
In Saraju Bala Devi vs Jyotirmoyee Devi (3) the Privy Council had to consider the nature of the (1) (1897) L.R. 24 I.A. 76.
(2) (1907) L.R. 35 I.A. 17.
(3) (1931) L.R. 58 I.A. 270, 427 interest that passed by two leases which constituted the lessee the Malik of the property in express terms.
Their Lordships examined the terms of those leases to see whether there was something in the context to indicate that the words did not import full proprietary rights and held that the conditions taken singly or collectively did not cut down the absolute estate.
It is important to note that in all these cases their Lordships of the Privy Council did not proceed on the basis that the mere use of the word "Malik" so clearly and unambiguously passed the absolute interest that examination of the context was not necessary.
On the contrary in each case they emphasised the need of examining the context to find out what was intended.
This was quite in line with what had been decided in one of the earliest cases (Mohamed Shumsool vs Shewukram) (1) where the word "Malik" came up for consideration.
In that case the question arose whether a, testator in saying that "only Mst.
Rani Dhan Kowar, the widow of my son is my heir and except Mst.
Rance Dhun Kowari aforesaid none other is; nor shall be my heir and Malik".
The document gave an estate of inheritance to the Rani which she was able absolutely to alienate.
The Privy Council thought it proper to take into consideration the ordinary notions and wishes of a Hindu with respect to devolution of property and proceeded to observe : " 'Having reference to these considerations, together with the whole of the will, all the expressions of which must be taken together without any one being insisted upon to the exclusion of others, their Lordships are of opinion that the two courts in India, who both substantially agree upon this point, are right in construing the intention of the testator to have been that the widow of his son should not take an absolute estate which she should (1)(1874) L R. 2 I.A. 7.
428 have power to dispose of absolutely, but that she took an estate subject to her daughters succeeding her in that estate.
" In Rai Bajrang Bahadur Singh vs Thakurain Bakhtrai Kuer (1) this Court had to consider a will which used the words "Malik Kamil" and "Naslan bad naslan" in reference to the interest given to the younger son Dhuj Singh.
Mukherjea,J., speaking for the Court said: "These words, it cannot be disputed, are descriptive of a heritable and alienable estate in the donee, and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to be conferred.
In all such cases the true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
" On a consideration of the context this Court came to the conclusion that Dhuj Singh had only a life interest in the properties and pointed out that "in cases where the intention of the testator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the will, it is a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik".
*What was said in this case in connection with the construction of a will applies with equal force to the construction of every other document by which some property is disposed of.
(1) ; 429 Remembering therefore that the use of words "Kul haq haquq somet Milkiyat" in the opening clause of this Panch Faisla raises a presumption that absolute interest was given thereby to Ramsaranlal, we have also to remember that this is merely a presumption which can well be displaced by what follows in the same document as regards this very property.
When all these different provisions are considered it appears to us to be clear beyond any shadow of doubt that the intention was not to make Ramsaranlal the absolute owner of the village but give him possession and management of the village for the benefit of Shri Ramchandra.
Swamy temple.
Immediately after saying that the village is given to Ramsaranlal "Kul haq haquq samet milkiyat" the document says in the same breath that this is being done for the under mentioned purposes.
Then the purposes are mentioned in the next sentence as meeting the expenses of worship and maintenance of the temple of Shri Ramchandra Swamy.
The provision is next made that if Ramsaranlal does not carry out this purpose then out of the co sharers between whom the partition was being made, any co sharer may carry it on and for this such co sharer shall take the Mouza Telibandha into his possession.
The document then proceeds to say that none of the co sharers and Ramsaranlal had any right over the village.
Then follows the prohibition against alienation.
The learned Judges of the High Court have said that the use of the words " 'from the profits and income of mouza Telibandha Ramsaranlal shall incure the expenses. . indicate that only a portion of the income was intended to be used and that supports the presumption arising from the use of the word " 'Kul haq haquq samet milkiyat" that absolute interest was being given to Ramsaran Lal.
This 430 provision has to be considered, however, along with all other clauses and it would not, in our opinion, be right to take the indication of the words "from the profits and income" as out weighing or neutralising the numerous other provisions which point to an intention that Ramsaran Lal would not have the absolute ownership of the village.
As has been mentioned earlier, the words "from the profits and income of mouza Telibandha" in the translation stand for "Telibandha ke munafa wo amdani se" of the original.
It is not correct to say that these words as used in the original necessarily mean " from the profits and income of mouza Telibandha.
" The words may equally well be translated as "with the profits and income of mouza Telibandha.
" It is worth noticing that the plaintiff 's witness Mathura Prasad stated in answer to a question from the Court : "At that time there was no question as to what should be done with the savings from the income of the village Telibandha, after meeting the requirements of the temple, because the income those days was not much while the expenses which used to be incurred on the temple were far in excess of the income from the village.
" The correctness of this statement was not challenged in cross examination.
It appears clear to us that by the use of the words "at that time" the witness meant "the time of the partition in 1896." In using the words "Mouza Telibandha ke munafa wo amdani se" it is more than likely therefore that the Panchas wanted to say that the purposes mentioned will be carried out with the income and profits and did not expect any surplus to be left.
We have therefore no hesitation in holding on a construction of paragraph 2 of the Panch Faisala that by this Award Telibandha village was dedicated absolutely to the temple of Shri Ramchandra Swamy and Ramsaran Lal was given possession of it as the manager and trustee of the temple.
431 But, says the learned Attorney General, a partition Award of this nature cannot under the Hindu Law create a valid dedication in favour of a deity.
This plea was not taken by the defendant in his written statement nor does it appear to have been urged seriously before the courts below.
Assuming it is open to the defendant to raise this point now, it has to be decided on the further assumption that the facts under which the provision of dedication was made in the award were correctly stated there.
That is, these provisions were made "with the consent of ' and at the instance of all the co sharers.
" The act of the Panchas was thus really the act of the owners of the property and as owners had full right to make a valid dedication to the deity the dedication as made in Para.
2 of the Panch Faisla must be held to be valid.
This brings us to the question if the dedication thus made has ceased to be valid by anything which happened afterwards.
It appears that immediately after the award was made, it was presented before the Sub Registrar, Raipur, for registration.
Within a few days, however, an application in connection with this matter appears to have been made before the Civil judge, Raipur.
In this Ramsaranlal stated his objection to the award on the ground that "the Panchas did not read out the award before him, that they had asked him to state in writing his objections which he did but they did not take any evidence.
" The Civil judge rejected Ramsaran Lal 's contention and returned the award to the Sub Registrar with a direction to register it in due course and also directed the Panchas to file it in a Civil Court after it had been duly registered.
It appears that after this the award was duly registered.
In November of the same year however Ramsaranlal 's three brothers brought a suit in the Court of the Civil judge at Raipur in which they sought to have this registered award set aside.
Ramsaranlal and 432 other co sharers were impleaded, in the suit as defendants.
After some evidence bad been recorded the hearing was adjourned on the prayer of the parties who wanted to settle the dispute amicably.
Mr. Bagchi who was the pleader of some of the plaintiffs was orally requested by the parties to decide whether the award of the panchas was proper or not and to make changes, if necessary, and on May 14, 1896 Mr. Bagchi made his award.
On the same date an application for compromise was filed in Court.
Accordingly, the Court dismissed the suit as compromised.
It has been strenuously contended on behalf of the respondent that this award of Mr. Bagchi made on May 14, 1896 wholly supersedes the previous award and whether the village Telibandha forms the trust property of Shri Ramchandra Swamy or not has to be decided on a construction of this award.
We see no force in this contention.
It has to be noticed that the 1896 award was not set aside by the Court and the suit was dismissed.
The mere fact that the suit is stated to be dismissed as compromised and the compromise appears to have been in accordance with Mr. Bagchi 's award, does not in law amount to the setting aside of the prior award.
We are inclined to agree with the contention of the learned Attorney General that Mr. Bagchi 's award gives the property to Ramsaran Lal absolutely with only a charge on the property for the expenses of the temple and did not make an absolute dedication of the village to the temple.
We are of opinion however that Mr. Bagchi 's award can have no legal effect in respect of the dedication already made.
, Once an absolute dedication of the property had been made in December 1896 in favour of Shri Ramchandra Swamy temple the former owners of the property had no legal authority to go behind that dedication.
The learned Attorney General concedes this position.
He argues, however, that if the award 433 that made the dedication has such legal infirmity as to make it invalid in law, the dedication also must be held to be invalid.
But, has the award been shown to have any legal infirmity ? The answer to this question must be in the negative.
The plaintiffs in the suit of 1897 did , it is true, allege certain infirmities.
We need not discuss the question whether the temple was a necessary party to the suit.
For, in fact, the Court did not consider whether such infirmity existed and as pointed out above.
, dismissed the suit.
The reference to Mr. Bagchi was made by the parties to the suit orally requesting him as shown by the preamble to the award ""to decide whether the Faisla Panchayati (i.e., award of panchas) was proper or not, adding that in case it was not proper, changes may be made in it whenever it may be necessary and improper".
On a reasonable interpretation of these words it does not seem that Mr. Bagchi was asked to consider whether the original award suffered from any infirmity in law.
Even more important than that is the fact that there is not a single word in Bagchi 's award to indicate, even remotely, that in his opinion, the award suffered from any infirmity.
On the contrary, Mr. Bagchi accepted the previous award and gave his own interpretation of it, saying that by the award after " 'including mouzas Borsi and Telibandha in the partition the Panchas caused the same to be given to Ramsaran Lal and his brothers.
" It is true that he added the words " 'I too by means of this award cause the same to be given to them", and then gave certain directions.
Quite clearly, therefore, he proceeded on the basis that the award was a good and valid award.
We are therefore clearly of opinion that the validity and force of the dedication made by the Panch Faisla has not in any way been affected by the Bagchi Award.
It is equally clear that the way Ramsaran Lal or after him Kamal Narayan dealt with this village 434 Telibandha or its income can in no way affect the force or validity of the absolute nature of the dedication.
The fact, therefore, that Ramsaran Lal used to credit the income from Telibandha to the Gharu Khata which was maintained for the general expenses of the family or that he made certain alienations of the property cannot change the absolute dedication into a partial dedication.
It may well be that Ramsaran Lal was himself led by the terms of the Bagchi award into thinking that the property belonged to the family with only a charge on it for the temple.
Whether or not this was so or his conduct was due to deliberate dereliction of duty is really irrelevant for our present purpose.
As the High Court rightly pointed out the course of conduct of the parties is of no relevance for the construction of a document which is itself unambiguous.
As in our opinion, the document (the Panch Faisla Award of 1896) clearly and unambiguously shows an .absolute dedication of the village to Shri Ramchandra Swamy temple, we think it unnecessary to examine the oral or documentary evidence as to how the property or the income of Telibandha was dealt with.
Our conclusion therefore is that the High Court 's decision that the plaintiff 's case of absolute dedication of Telibandha in favour of Shri Ramchandra Swamy has not been established is not correct and the High Court 's order based on that view that the plaintiff was not entitled to succeed, must be set aside.
In view of its decision that absolute dedication had not been proved, the High Court did not consider it necessary to decide the several other issues which had been framed in the suit and without deciding which the suit cannot be properly disposed of.
Accordingly, we allow the appeal, holding that the village Telibandha has been absolutely dedicated 435 to Shri Ramchandra Swamy temple, set aside the judgment and decree of the High Court and send the case back to the High Court for disposal of the appeal, after deciding the other issues in the suit that require to be decided for its proper disposal.
Costs will abide the result.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
A registered partition award made by Panchas between all the co sharers provided : "Mouza Telibandha together with all rights and interests of proprietorship has been given to Ramsaranlal. for the undermentioned purposes.
From the profits and income Ramsaranlal shall incur expenses.
Shri Ramchandra Swami Math Shri Dudhaaherji, according as the same expenses have been continuing to be met up to this day.
If this work fails to be done . any cosharer who may benefit . shall take this Mouza telibandha together with all rights and interests into his possession and carry on the work of the temple .
None of the co sharers and Ramsaranlal have any rights over it.
Ramsaranlal or any other co sharers have neither got, nor shall have, any right to transfer.
Mouza Telibandha. , because Mauza Telibandha has been reserved for ever for the aforesaid purpose and it shall continue to be so only " Some of the co sharers filed a suit to set aside the award.
The parties referred the matter to one Mr. Bagchi and in view of his award a compromise petition was filed and the suit was dismissed.
The appellants contended that the partition award made an absolute dedication of the Monza in favour of the temple.
The respondent contended that the award gave the Monza in full proprietorship to Ramsaranlal with only a charge on it to meet the expenses of the temple that the partition award could not validly create a dedication and that the partition award was modified by the Bagchi award.
418 Held, that the partition award created an absolute dedi cation of Mouza Telibandha in favour of the temple.
Though the use of the words "Malik" and "Milkiyat" indicated the conferment of an absolute estate, it was not invariably so and it was necessary to examine the context in each case.
Where the intention is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraints on alienation has to be repelled on the ground of repugnancy but where the restrictions arc the primary things intended and they are consistent with the whole tenor of document, it is a material circumstance for displacing the presumption of absolute ownership implied in the use of the word "Malik".
The use of the words "Kul haq haquq samet Milkiyat" in the opening clause of the award raised a presumption that absolute interest was given thereby to Ramsaranlal, but the later recitals rebutted this presumption.
Considering all the different provisions, it was clear that the intention was not to make Ramsaranlal absolute owner but to give him possession and management of the Mouza for the benefit of the temple.
Sahebzada Mohd. Kamgar Shah vs Jagdish Chandra Rao Dhabal Deo, ; , Lalit Mohan Singh Roy vs Chukkuna Lal Roy, [1897] L.R. 24 I.A. 76; Mst.
Surajmani vs Babi Nath Ojha, (1907) L.R. 35 1.
A. 17; Sarjoo Bara Devi vs Jyotirmoyee Debi, (1931) L. R. 58 r. A. 270, Mohamed Shamsool vs Shewukram, (1874) L. R. 2 I.A. 7 and Rai Bajrang Bahadur Singh vs Thakurain Bakhtrai Kuer, [1953] 3 S.C.R. 232, referred to.
The partition award validly dedicated the Mouza in favour of the temple.
The act of the Panchas in making the award was really the act of the owners of the property who had full right to make the dedication.
Once an obsolute dedication had been made by the partition award the former owners had no legal authority to go behind the dedication and accordingly the Bagchi award could not affect the dedication.