judgement:
Civil Appeal No. 1415 of 1970.
From the Judgment and Order dated 30 9 69 of the Bombay High Court in S.C.A. No. 1512 of 1967.
V. M. Tarkunde, R. Satish, V. K. Pandita and E. C. Agarwala for the Appellant.
M. C. Bhandare, C. K. Ratnaparkhi and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by FAZAL ALL J.
This appeal by certificate is directed against a judgment of the Bombay High Court dated 30 9 1969 dismissing the writ petition filed by the appellant against an order of the Commissioner.
The facts of the case lie within a narrow compass and may be stated as follows: Proceedings under Maharashtra Agricultural Lands (Ceiling of Holdings) Maharashtra Act No. XXVII 1961 and (hereinafter to be referred to as the Act) which received the assent of the President on 1050 16 6 1961 were taken against the appellant in order to determine whether the return filed by the appellant under the provisions of the Act was correct or not.
In his return filed before the Deputy Collector, the appellant had shown the total lands to be 370 acres and 34 gunthas.
It was however alleged by the appellant that some time in the year 1956, there was a partition between the appellant and his nephews as a result of which his family got 202 acres of land.
The appellant had sold 51 acres of land to other persons before the Act came into force.
The appellant further alleged that he gave some lands to his adopted son in lieu of the latter 's share.
The adopted son Nemichand thereafter gave 93.25 acres of land to his mother under a civil Court decree.
All these transactions took place some time in the year 1956.
The Collector after examining the return found that the total land owned by the appellant was 118 acres 36 gunthas and the excess was only 4 acres 36 gunthas which could be taken over under the Act.
Against the order of the Deputy Collector, the Commissioner appears to have called for the records and interfered suo moto and after making some enquiry, he held that the land declared by the appellant in his return far exceeded the ceiling limit.
In computing the total lands owned by the appellant, the Commissioner appears to have taken into account even that land which had been given by Nemichand to his mother, the wife of the appellant.
Against this order of Commissioner, the appellant filed a writ petition before the High Court which was dismissed as a result of which an application was filed for grant of certificate for appeal to this Court which was granted.
Hence this Appeal.
The short point taken by Mr. V. M. Tarkunde, learned counsel for the appellant is that under the provisions of the Act, land which was received by his wife from the adopted son was her personal property and could not be included in the ceiling of the appellant and that the Commissioner therefore had no jurisdiction to add that land and treat the same as the land of the appellant and proceed to set said the order of the Deputy Collector.
The High Court in a short judgment refused to interfere mainly on the ground that the transfer of the land in favour of Nemichand, the adopted son, was held to be collusive as also the decree.
There was neither any pleading nor any case made out either before the Deputy Collector or even before the Commissioner to indicate that the transfer of the lands in favour of the adopted son and the transfer of Nemichand in favour of his mother were collusive or tainted by fraud.
In fact both these transactions took place as far back as 1956, that is to say, five years before the Act came into force.
Even the Act clearly exempts lands which may 1051 have been acquired or transferred prior to 4 8 1959.
Ss. 8, 10 and 12 which deal with the subject clearly enjoin that only those transfers would be hit by the Act which are made at any time on or after 4 8 1959.
As both the transfers mentioned above were prior to 4 8 1959, it is obvious that they fell completely outside the ambit of the provisions of the Act.
The High Court was thus not justified in presuming that the transfer made by the appellant in favour of his adopted son towards his share and the transfer by the adopted son Nemichand to his mother were either collusive or fraudulent.
There was neither any foundation in the pleadings nor any evidence to support this conjecture of the High Court.
Mr. Bhandare, learned Counsel appearing for the respondent submitted that the word 'person ' defined in Sec.
2(22) of the Act includes family and that 'family ' as defined in Sec.
2(11) of the Act includes, a Hindu undivided family, and in the case of other persons, a group or unit the members of which by custom or usage are joint in estate or possession or residence.
Reliance was also placed on Section 6 of the Act which runs thus: "Where a family unit consists of members which exceed five in number, the family unit shall be entitled to hold land exceeding the ceiling area to the extent of one fifth of the ceiling area for each member in excess of five, so however that the total holding shall not exceed twice the ceiling area, and in such case, in relation to the holding of such family unit, such area shall be deemed to be the ceiling area.
" These sections are of no assistance to the Respondent because Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the separate or individual property of a member of the family which is self acquired property and cannot be clubbed together with land of owner or his family.
To begin with the Act merely intended to include land with in the ceiling limit of a person or his family which belonged to such a person or persons having different shares in that property.
That is why all transfers made prior to 1959 were expressly exempted from the operation of the Act.
The arguments advanced by the respondent appear to have found favour with the Commissioner, but it was legally erroneous as indicated above.
In these circumstances, therefore, the more important fact to be determined was whether or not any transfer that has been made by the person concerned was prior to or after 4 8 1959.
If the transfer was prior to 4 8 1959 then the provisions of the Act would not apply at all.
In the instant case, both the 1052 transfers being three years prior to the date mentioned above, the Act would not apply to the appellant, and the Commissioner and the High Court therefore erred in holding that the lands transferred by Nemichand to his mother should be included in the total area of the land owned by the appellant.
We, therefore, allow this Appeal, set aside the judgment of the High Court and also that of the Commissioner and restore the judgment of the Deputy Collector.
In the special circumstances, there shall be no orders as to costs.
The appeal is accordingly allowed.
N.K.A. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant in his return filed before the Deputy Collector had shown the total lands in his possession to be 370 acres and 34 gunthas.
Proceedings under the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 were taken against him in order to determine whether the return filed was correct or not.
It was alleged by the appellant that some time in the year 1956 there was a partition between the appellant and his nephews as a result of which his family got 202 acres of land.
The appellant had sold 51 acres of land to other persons before the Act came into force and that he gave some land to his adopted son in lieu of the latter 's share and that the adopted son thereafter gave 93.25 acres of land to his mother under Civil Court decree.
All these transactions took place some time in the year 1956.
The Collector after examining the return found that the total land owned by the appellant was 118 acres 36 gunthas and the excess was only 4 acres 36 gunthas which could be taken over under the Act.
The Commissioner called for the records and interfered suo moto.
After making some enquiry, he held that the land declared by the appellant in his return far exceeded the ceiling limit and in computing the total lands owned by the appellant he took into account even the lands which had been given by the adopted son to his mother, the wife of the appellant.
The appellant filed a writ petition against the order of the Commissioner in the High Court which refused to interfere on the ground that the transfer of the land in favour of the adopted sons was held to be collusive as also the decree.
In the appeal to this Court, it was contended on behalf of the appellant that under the provisions of the Act, land which was received by his wife from the adopted son was her personal property and could not be included in the ceiling of the appellant and that the Commissioner had no jurisdiction to add that land and treat the same as the land of the appellant and to set aside the order of the Deputy Collector.
On behalf of the respondent it was contended that the word 'person ' defined in section 2(22) of the Act includes family and that 'family ' as defined in section 2(11) includes, a Hindu Undivided family, and in the case of other persons, a group or unit, the members of which by custom or usage are joint in an estate or possession or residence.
Allowing the appeal.
^ HELD: 1.
The judgment of the High Court is set aside as also that of the Commissioner and that the judgment of the Deputy Collector restored.
[1052B] 1049 2.
The Act clearly exempts the land which may have been acquired or transferred prior to 4 8 1959.
Section 8, 10 and 12 which deal with the subject clearly enjoin that only those transfers would be hit by the Act which are made at any time on or after 4 8 1959.
[1051A] 3.
There was neither any pleading nor any case made out either before the Deputy Collector or even before the Commissioner to indicate that the transfer of the land in favour of the adopted son and the transfer by the adopted son in favour of his mother were collusive or tainted by fraud.
Both these transactions took place as far back as 1956 that is to say 5 years before the Act came into force.
[1050G H] 4.
The High Court was not justified in presuming that the transfer made by the appellant in favour of his adopted son towards his share and the transfer by the adopted son to his mother was either collusive or fraudulent.
There was neither any foundation in the pleadings nor any evidence to support this conjecture of the High Court.
[1051A C] 5.
Sections 2(11), 2(12) are of no assistance as Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the separate or individual property of a member of the family which is self acquired property and cannot be clubbed together with the land of the owner or his family.
To begin with, the Act merely intended to include the land within the ceiling limits of a person or his family which belonged to such a person or persons having different shares in that property.
That is why all transfers made prior to 1959 were expressly exempted from the operation of the Act.
[1051E G]


judgement:
ivil Appeal Nos.
559 560 of 1970.
Appeals by Special Leave from the Judgment and order dated 24 1 1969 of the Allahabad High Court in Special Appeal No. 511 of 1968 connected with Special Appeal No. 512 of 1968.
R. K. Garg and V. J. Francis for the Appellant.
Madan Bhatia for the Respondent.
The Judgment of the Court was delivered by UNTWALIA, J.
These two appeals by special leave have been heard together as common questions of law and fact are involved in them.
We shall state the facts of Civil Appeal No. 559 of 1970 in which the appellant is Shri Harish Chandra Nigam.
The facts of the other appeal viz.
Civil Appeal No. 560 of 1970 in which the appellant is Shri Amar Singh are almost identical except one which shall be stated hereinafter.
The plot concerned in Nigam 's appeal is plot No. 60 and in the other appeal it is plot No. 6.
Nigam made an application to the Director of Industries, Uttar Pradesh for allotment of the plot to him for industrial purposes.
By an order dated November 22, 1956 the application was "provisionally accepted subject to the final approval of Government." Finally he was informed by the Manager of Industrial Estate, Kalpi Road, Kanpur in his letter dated 31 10 1962 "that the State Government has not approved the allotment in your favour and the provisional allotment made in your favour stands cancelled.
" But it appears after the provisional allotment Nigam was put in possession of the land.
Steps were to be taken for his eviction after giving information as to the cancellation of the allotment in the letter aforesaid dated 31 10 1962.
But before these steps were taken and possession was recovered from him the District Magistrate, Kanpur requisitioned the plot under section 811 29 of the Defence of India Act, 1962; hereinafter called the Act.
This order is dated 7 12 1963.
The order reads as follows: "Whereas in my opinion it is necessary and expedient to requisition unit No. 60 in the Govt.
Industrial Estate, Kanpur specified below, of which you are the person in possession for efficient conduct of Military operations.
And whereas the powers of requisitioning under Section 29 of the Defence of India Act, 1962 (Central Act.
No. 51 of 1962) have been conferred on me by the Government of Uttar Pradesh under Notification No. 5589/18 I LA/63, dated January 14, 1963 issued by Revenue (B) Department /18 Bhardwaj, District Magistrate, Kanpur hereby requisition the aforesaid Unit and order that possession thereof be delivered by 11 12 63 to the General Manager, ordnance Factory, Kalpi Road, Kanpur, after removing therefrom any furniture or other articles.
I further order that the Tahsildar, Kanpur shall arrange for the delivery of possession of the aforesaid unit to the General Manager, ordnance Factory, Kalpi Road, Kanpur at the expiry of the period indicated above, if the possession is not delivered in compliance of the above order.
" Pursuant to the above order possession was taken from appellant Nigam on January 2, 1964 and was handed over to the General Manager, Ordnance Factory, Kanpur.
No steps were taken by the Industries department for taking formal or symbolical possession of the plot in question after it was requisitioned by the District Magistrate.
Then came the derequisitioned order passed by the District Magistrate under section 35 of the Act on 20 1 1967.
In passing it may be mentioned here that the appellant had kept his stores in two of the rooms standing in the land.
But this fact is not very material for the purpose of deciding the matter in issue before us.
The de requisition order reads as follows: "Regarding requisition of Unit No. 6 and 60 Industrial Estate for starting Astisan Training School by the Ordnance Factory, Kalpi Road, Kanpur.
ORDER Whereas the property specified in the schedule hereto appended was requisitioned by the order of the District Magistrate, Kanpur dated 7 12 1963 until further order.
812 And whereas it has now been decided that the said property shall be released from requisition with immediate effect.
Now, therefore, in exercise of the powers conferred by sub section (1) of Section 35 of the Defence of India Act, 1962 (Act No. 51 of 1962), I, section section Sidhu, District Magistrate, Kanpur being the competent authority do here by declare that the said property is released from requisition, and hereby specify the Director of Industries, Kanpur as the person to whom the possession of the said property shall be given.
Thereupon the petitioner filed a writ petition in the Allahabad High Court to issue a writ in the nature of mandamus against the respondent directing to deliver possession of the property in dispute to the appellant and not to deliver possession to any other person.
It appears, however, that possession of the property had been given to the Industries department.
The petitioner unsuccessfully prosecuted his writ petition before the learned single Judge of the High Court.
He failed in appeal also.
Hence the present appeal.
One extra fact which need be mentioned in regard to the case of Amar Singh is that after de requisition and after possession of the plot was taken by the Industries department of the Government of Uttar Pradesh the plot was allotted to Mrs. B. K. Anand, respondent No. 5 in Civil Appeal No. 560 of 1970.
The other facts of his case are identical.
Learned Counsel for the appellants submitted before us that irrespective of the disputed question of fact whether there was final allotment in favour of the appellant or not, since requisition order had been served on him and possession had been taken from him, the property and its possession on de requisition ought to have been released to him.
It could not be made in favour of the Industries department.
Learned counsel for the State, on the other hand, submitted that since the appellant had not semblance of right, title or interest left in the plot after cancellation of the provisional allotment in his favour he had no locus standi to ask for a writ of mandamus for delivery of possession of the plot to him.
Direction was given for releasing the plot in favour of the Industries department and if the appellant is so advised he may recover possession of the plot on establishment of his right, title or interest in the plot in a competent court in accordance with sub s.(2) of section 35 of the Act.
It was 813 further submitted in case of Amar Singh that the plot had been allotted to Mrs. B. K. Anand and she cannot be dispossessed now.
We shall read the two provisions first and enunciate the law engrafted in them and then proceed to pass the final orders in the two appeals as their respective facts and circumstances may warrant.
Sections 29 and 35 read as follows: "29.
(1) Notwithstanding anything contained in any other law for the time being in force, if in the opinion of the Central Government or the State Government it is necessary or expedient so to do for securing the defence of India, civil defence, public safety, maintenance of public order or efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any immovable property and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning: Provided that no property or part thereof which is exclusively used by the public for religious worship shall be requisitioned.
(2) The requisition shall be effected by an order in writing addressed to the person deemed by the Central Government or the State Government, as the case may be, to be the owner or person in possession of the property, and such order shall be served in the prescribed manner on the person to whom it is addressed.
(3) Whenever any property is requisitioned under sub section (1), the period of such requisition shall not extend beyond the period for which such property is required for any of the purposes mentioned in that sub section.
(1) Where any property requisitioned under section 29 is to be released from such requisition, the Government by which or under whose authority the property was requisitioned or any person generally or specially authorised by it in this behalf may, after such inquiry, if any, as it or he may in any case, consider necessary to make or cause to be made, specify by order in writing the person to whom possession of the property shall be given and such possession shall, as far as practicable, be given to the person who 814 appears to the Government or, as the case may be, the person authorised as aforesaid, to be entitled to the possession of the property at the time such order is made.
(2) The delivery of possession of the property to the person specified in the order under sub section (1) shall be a full discharge of the Government from all liabilities in respect of the property, but shall not prejudice by any rights in respect of the property which any other person may be entitled by due process of law to enforce against the person to whom possession of the property is delivered.
" The requisition was effected by an order in writing addressed to the person in possession of the property in accordance with sub section
(2) of section 29.
He may not be the owner of the property.
But on requisition possession was taken from him.
The inquiry envisaged under sub section
(1) of section 35 is necessitated only if facts and events taking place after requisition necessitate it.
Otherwise not.
As for example, suppose, possession of a property is taken from X and after requisition he dies and dispute starts between his heirs as to who is entitled to get back the property.
A summary and prima facie inquiry may be made under sub section
(1) and property may be released in favour of the person who may be entitled to the possession of it in the opinion of the Government.
Of course such a decision would be subject to the adjudication of the rights of the parties in accordance with sub section
Facts anterior to the requisition are not necessary to be investigated for release of the property because the property has to be released in favour of the person from whom possession was taken.
If it were not so then it would be enlarging the scope of the inquiry envisaged under sub section
(1) of section 35 of the Act and the power of the Government to adjudicate upon anterior title of the various claimants to the property.
This is not the scope of the inquiry.
It is, therefore, clear to us that technically speaking on a correct interpretation of the law the property on de requisition ought to have been released in favour of the two appellants in the two appeals from whom possession was taken at the time of requisition.
But on the special facts of these two appeals we do not feel persuaded to make our unqualified or unconditional order in these appeals filed on grant of special leave under article 136 of the Constitution as justice requires only a qualified and conditional order.
It is plain on the facts placed before us that there was no final allotment of the plots in favour of the appellants.
The allotment was only provisional subject to the approval of the Government.
Possession had been given to them and before requisition the Industries 815 department had not recovered back possession of either of the two plots.
In such a situation we make the following orders in the two appeals separately.
Civil Appeal No. 559 of 1970.
The possession of plot No. 60 is directed to be delivered to appellant Nigam within a period of six months from today.
If during the said period of six months the Government takes adequate and legal steps for taking back formal possession of the plot from him, then possession need not be delivered back to Nigam.
But on their failure to do so our direction will hold good and possession of plot No. 60 will have to be given to Nigam subject to its recovery back by the Government even later.
It will be open to the aggrieved party, if necessary, to initiate a proceeding in accordance with sub section
(2) of section 35.
We allow this appeal in part to the extent and in the manner indicated above.
Civil Appeal No. 560 of 1970.
Since in this case allotment of the plot was made in favour of Mrs. B. K. Anand, we do not consider it just and expedient to direct the Government to take steps for completing the formality of taking possession and to dispossess Mrs. Anand.
On the special facts of this case we dismiss this appeal in toto.
There will be no order as to costs in either of the appeals.
V.D.K. C.A. 559/70 allowed.
C.A. 560/70 dismissed.

summary/full:
The appellants in both the appeals were allotted a plot each "provisionally subject to the final approval of Government" and possession thereof was also given in 1956.
Six years later by letter dated 31 10 62 they were informed that "the State Government has not approved the allotment in your favour and the provisional allotment made in your favour stands cancelled".
Steps were to be taken for the eviction as per the said letter of cancellation, but before any action was taken, the District Magistrate requisitioned the said plots for defence purposes under section 29 of the Defence of India Act, 1922.
The letters of requisition were addressed to the appellants and possession taken.
No steps were taken by the Department for taking formal or symbolical possession of the plots in question after they were requisitioned by the Magistrate.
Later on, while derequisitioning the said plots under section 35(1) of the Defence of India Act 1962, the Magistrate "specified the Director of Industries, Kanpur as the person to whom the possession of the said plots shall be given".
Possession was given accordingly and the Director of Industries in CA 560/70 in turn allotted the plot covered in it to one Mrs. B. K. Anand respondent 5 therein.
The writ Petitions filed by the appellants in the High Court challenging the said orders failed and hence the appeal by special leave.
Allowing CA 559/70 and dismissing CA 560/70, the Court, ^ HELD: The inquiry envisaged under sub section (1) of section 35 of the Defence of India Act, 1962, is necessitated only if facts and events taking place after requisition necessitate it.
Otherwise not.
As for example, suppose, possession of a property is taken from X and after requisition he dies and dispute starts between his heirs as to who is entitled to get back the property.
A summary and prima facie inquiry may be made under sub section
(1) and property may be released in favour of the person who may be entitled to the possession of it in the opinion of the Government.
Of course such a decision would be subject to the adjudication of the rights of the parties in accordance with sub section
[814 C E] Facts anterior to the requisition are not necessary to be investigated for release of the property because the property has to be released in favour of the person from whom possession was taken.
If it were not so then it would be enlarging the scope of the inquiry envisaged under sub section
(1) of section 35 of 810 the Act and the power of the Government to adjudicate upon anterior title of the various claimants to the property.
This is not the scope of the inquiry.
[814 E F] Technically speaking on a correct interpretation of the law the property on de requisition ought to have been released in favour of the two appellants in the two appeals from whom possession was taken at the time of requisition.
The requisition was effected by an order in writing addressed to the person in possession of the property in accordance with sub section
(2) of section 29.
He may not be the owner of the property.
But on requisition possession was taken from him.
[814 C D, F G] [The Court, however, passed a qualified and conditional order in terms].


judgement:
N: Criminal Appeal No. 211 of 1974.
Appeal by special leave from the Judgment and order dated 19 4 1974 of the Delhi High Court in Crl.
A. No. 186/72.
Frank Anthony, section K Dholakia and R. C. Bhatia for the Appellant.
H. section Marwah and R. N. Sachthey for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The appellant Hazari Lal was convicted by the learned Special Judge, Delhi, of offences under section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act, 1947, and Section 161 of the Indian Penal Code.
On the first count he was sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 500.
On the second count he was sentenced to suffer rigorous imprisonment for a period of two years.
The two sentences were directed to run concurrently.
The convictions and sentences were confirmed by the High Court of Delhi.
1056 The case which the prosecution set out to prove before the Trial Judge was briefly as follows: The scooter rickshaw belonging to Sri Ram (P.W.3) and driven by his driver Ram Lubhaya (P.W. 6) was involved in an accident on July 12, 1969.
The scooter rickshaw and a tonga which were involved in the accident were taken to the Police Station, Kashmere Gate by the accused, a Police constable attached to that station.
P.W. 3 obtained orders from the Magistrate for the release of his vehicle and went to the Police Station to obtain delivery of the vehicle.
The accused, who was present took him outside and told him that the vehicle would be given to him only if he paid a bribe of Rs. 60.
P.W. 3 then went away.
He went to the Anti Corruption Department and made statement to Inspector Paras Nath, P.W. 8.
After recording the statement of P.W. 3, P.W. 8 sent for two persons Davinder Kumar (P.W. 4) and Kewal Krishan.
The statement of P.W. 3 was read out to P.W. 3 in the presence of the two Panch witnesses Davinder Kumar and Kewal Krishan.
P.W. 3 then produced six currency notes of the value of Rs. 10 each.
The numbers of the notes were noted and they were treated with phenol phthelene powder.
After the usual instructions were given to P.W. 3 and the panch witnesses, the raiding party proceeded towards Kashmere Gate.
P.W. 3, P.W. 6 and Kewal Krishan went into the Police Station, while P.W. 8 and others stayed outside.
The money was handed over to the accused who took it and put it inside the right hand pocket of his trousers.
P.W. 6 and Kewal Krishan then came out and signalled to P.W. 8 whereupon P.W. 8 and the Panch witnesses went inside the Police Station.
The accused was present inside.
As soon as he saw the party led by P.W. 8 he took out the currency notes from the right side pocket of his trousers and threw them across the wall into the adjoining room.
P.W. 8 instructed some of the police officers accompanying him to rush to the adjoining room and to keep a watch over the notes which must have fallen there.
He then introduced himself to the accused and took him to the adjoining room.
Some of the notes were lying on the table of the Duty Officer in that room while others had fallen on the ground near the chair of the Duty officer.
The six notes were collected in the presence of the witnesses and their numbers were compared with the numbers noted before they proceeded on the raid.
The numbers tallied.
The accused was questioned by the Inspector and he denied that he had demanded any bribe and kept silent about the acceptance of the bribe.
Both the hands of the accused were dipped in sodium carbonate solution and the solution which was previously colourless turned pink.
The same test was repeated 1057 with the handkerchief which was taken out of the right hand side pocket of the accused and also with the trousers of the accused.
Each test resulted in the bicarbonate solution turning pink.
After completion of the investigation a charge sheet was laid against the accused being for offences under section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act and section 161 of the Indian Penal Code.
All that has been mentioned in the previous paragraph was what the prosecution set out to prove before the Trial Court.
But many of the witnesses turned volte face.
P.W. 3 stated in his evidence that on the first occasion when he went to the Police Station to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar.
It was the Hawaldar and not the accused that demanded the bribe of Rs. 60 from him.
According to him at the time of the raid, when he, P.W. 6 and Kewal Krishan went inside the Police Station they found the accused there and asked him to take the sum of Rs. 60 and return the scooter rickshaw.
P.W. 3 stretched his hand with the money towards the pocket of the accused 's trousers but the accused said the money might be paid to the person for whom it was meant.
He refused to receive the money and jerked P.W. 3 's hand with his hand as a result of which the notes came to be flung across the wall into the neighbouring room.
He told the Inspector that the notes had been flung across the wall and that the accused had neither demanded the amount from him nor accepted the money from him.
On the other hand the accused had refused to take the money from him.
The Inspector recovered the notes from the neighbouring room, placed them on the table and thereafter subjected the handkerchief and the pocket of the accused 's trousers to the phenol phthelene test.
The implication of this part of the evidence was that it was as a result of the handling of these articles by the Inspector that they came to have phenol phthelene powder and that was the reason why the solution turned pink.
P.W.3 was treated as hostile and cross examined by the prosecution with reference to the earlier statements made by him.
P.W. 6 followed suit and he too was declared hostile and cross examined by the prosecution with reference to his earlier statements.
Of the two panch witnesses Kewal Krishan was not examined as he had become mentally deranged before the trial of the case.
Davinder Kumar was examined as P.W. 4.
This witness supported the prosecution case in some particulars but in regard to other particulars he made statements contrary to his earlier statements.
He was also treated as hostile and cross examined by the prosecution.
In substance his chief examination was to the affect that P.W.3, P.W.6 and 1058 Kewal Krishan went inside the Police Station, while he stayed outside with the Inspector P.W. 8. P.W.3, P.W.6 and Kewal Krishan came out after sometime and stated that the accused had accepted the bribe.
The raiding party then went inside.
On seeing the Inspector the accused got suspicious and threw away the currency notes across the wall into the neighbouring room.
In examination in chief he also stated that before they proceeded to the Police Station for the raid, statement of both P.W.3 and P.W.6 had been recorded.
He stated that after the bribe was given P.W.3 also came out and signalled to P.W.8 that the bribe had been given.
Another statement made by him in chief examination was that he was unable to remember if the Inspector questioned the accused at the time of the raid.
As these statements were contrary to his earlier statements he was cross examined by the prosecution.
Paras Nath, (P.W.8) spoke to the complaint made to him by P.W.3.
, the action that he took, the raid etc.
Regarding the actual raid he stated that P.W.3, P.W.6 and Kewal Krishan first went inside the Police Station.
After sometime, P.W.6 and Kewal Krishan came out and signalled that P.W.3 had passed the bribe money and that P.W.3 and the accused were in the room.
When he went in, the accused took out the notes from the right side pocket of his trousers and threw them across the wall into the adjoining room.
He then spoke to the test made by him etc.
On this evidence both the learned Sessions Judge and the High Court found the accused guilty of the two offences with which he was charged.
Shri Frank Anthony, learned counsel for the appellant submitted that the Courts below had made free use of the statements made by the witnesses in the course of the investigation as if such statements were substantive evidence.
If those statements were excluded from consideration there would be no evidence of any demand or acceptance of bribe by the accused.
All that the prosecution would be left with would be the evidence of the Inspector and P.W.4 to the effect that the accused took out the currency notes from the right side pocket of his trousers and flung them across the wall into the adjoining room.
That evidence according to the learned counsel would not be sufficient, even if accepted, to draw the presumption under section 4(1) of the Prevention of Corruption Act.
Reliance was placed upon the decision of this Court in Sita Ram vs The State of Rajasthan,(1) and Suraj Mal vs The State (Delhi Administration (2).
1059 The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation.
Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by s.145 of the Indian Evidence Act.
Where any part of such statement is so used any part thereof may also be used in the re examination of the witness for the limited purpose of explaining any matter referred to in his cross examination.
The only other exceptions to this embargo on the use of statements made in the course of an investigation, relates to the statements falling within the provisions of section 32(1) of the Indian Evidence Act or permitted to be proved under section 27 of the Indian Evidence Act.
S.145 of the Evidence Act provides that a witness may be cross examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation.
Shri H. section Marwah, learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in section 3 of the Evidence Act which is, "a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man, ought, in the circumstances of the particular case to act upon the supposition that it exists.
" We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred.
After excluding irrelevant material we are left with the evidence of P.W.8 and that of P.W.4 whose evidence corroborates that of P.W.8 in several material particulars.
We, however, wish to say that the evidence of P.W.8 is entirely trustworthy and there is no need to seek any corroboration.
We are not prepared to accept the submission of Shri Frank Anthony that the fact that he is the very Police Officer who laid the trap should be sufficient for us to insist upon 1060 corroboration.
We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration.
In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer.
It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance.
We are forced to say this because of late we have come across several judgments of Courts of Session and sometimes even of High Courts where reference is made to decisions of this Court on matters of appreciation of evidence and decisions of pure question of fact.
While on this subject of appreciation of evidence we may also refer to an argument of Shri Frank Anthony based on the observations of a learned single judge in Kharaiti Lal vs The State,(1) that persons holding clerical posts and the like should not be called as panch witnesses, as such witnesses could not really be called independent witnesses as they would always be under fear of disciplinary action if they did not support the prosecution case.
We do not think we can accept the submission of Shri Frank Anthony.
The respectability and the veracity of a witness is not necessarily dependent upon his status in life and we are not prepared to say that Clerks are less truthful and more amenable than their superior officers.
From the evidence of P.W.8 and that of P.W.4 we may take the following facts as established: P.W.3 made a report to P.W.8.
He produced six currency notes of the denomination of ten rupees whose numbers were noted and which were treated with phenol phthelene powder.
Thereafter the notes were handed over to P.W.3. P.W.3, P.W.6 and Kewal Krishan went inside the Police Station.
After sometime P.W.6 and Kewal Krishan came out and gave a signal.
P.W.8 then went inside the Police Station.
On seeing him the accused who was inside the Police Station with P.W.3 took out some currency notes from the right side pocket of his trousers and threw them across the partition wall into the adjoining room.
The notes which were so thrown out by the accused, were found to be the same notes which had been treated with phenol phthelene and handed over to P.W.3 before the raid.
The handkerchief which was taken out of the right side pocket of the trouser of the accused as well as the 1061 right side pocket itself were subjected to a test which showed that they too had come into contact with phenol phthelene powder.
It may be noted that the circumstance that the handkerchief (Ex.
P 4) recovered from the right side pocket of the pant on the person of the accused was subjected to the colour test which indicated the presence of phenol phthelene powder on that handkerchief was put to the appellant in his examination under section 313, Criminal Procedure Code.
Instead of giving any explanation as to how this phenol phthelene powder came on the handkerchief lying in his pocket, the appellant replied.
"I know nothing about it.
" From these facts the irresistible inference must follow, in the absence of any explanation from the accused, that currency notes were obtained by the accused from P.W.3.
It is not necessary that the passing of money should be proved by direct evidence.
It may also be proved by circumstantial evidence.
The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from P.W.3.
Under s.114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case.
One of the illustrations to s.114 of the Evidence Act is that the Court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
So too, in the facts and circumstances of the present case the Court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from P.W.3, who a few minutes earlier was shown to have been in possession of the notes.
Once we arrive at the finding that the accused had obtained the money from P.W.3, the presumption under s.4(1) of the Prevention of Corruption Act is immediately attracted.
The presumption is of course rebuttable but in the present case there is no material to rebut the presumption.
The accused was, therefore, rightly convicted by the Courts below.
We will now refer to the two decisions of this Court on which Shri Frank Anthony relied.
In Sita Ram vs The State of Rajasthan, (supra) the evidence of the complainant was rejected and it was held that there was no evidence to establish that the accused had received any gratification from any person.
On that finding the presumption under s.4(1) of the Prevention of Corruption Act was not drawn.
The question whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complainant 1062 was not considered.
All that was taken as established was the recovery of certain money from the person of the accused and it was held that mere recovery of money was not enough to entitle the drawing of the presumption under s.4(1) of the Prevention of Corruption Act.
The Court did not consider the further question whether recovery of the money alongwith other circumstances could establish that the accused had obtained gratification from any person.
In the present case we have found that the circumstances established by the prosecution entitled the Court to hold that the accused received the gratification from P.W.3.
In Suraj Mal vs The State (Delhi Administration) (supra) also it was said mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of bribe or to show that the accused voluntarily accepted the money.
There can be no quarrel with that proposition but where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received gratification from some person the Court would certainly be entitled to draw the presumption under s.4(1) of the Prevention of Corruption Act.
In our view both the decisions are of no avail to the appellant and as already observed by us conclusions of fact must be drawn on the facts of each case and not on the facts of other cases.
In other words there can be no precedents on questions of facts.
The appeal is, therefore, dismissed.
P.B.R. Appeal dismissed.

summary/full:
The accused (appellant) who was charged with offences under section 5(1) (d) of the Prevention of Corruption Act and section 161 of the Penal Code was convicted and sentenced by the Special Judge.
The convictions and sentences were confirmed by the High Court.
The prosecution alleged that the scooter rickshaw of the complainant driven by his driver was one day involved in a traffic accident and the vehicle was taken to the police station by the accused who was a police constable.
The complainant obtained orders of the Magistrate for its release but the accused declined to release the vehicle unless he was paid a sum of Rs. 60.
The complainant was not prepared to pay the sum demanded.
He then went to an Inspector of the Anti Corruption Department and lodged a complaint that the accused was demanding illegal gratification from him for the release of his scooter rickshaw which was ordered by the Magistrate to be released.
The prosecution further alleged that the Inspector called two panch witnesses and after noting down the numbers of six ten rupee currency notes given by the complainant, treated them with phenol phthalene powder and gave them to the complainant.
It was arranged that the complainant should hand over the currency notes to the accused and should thereafter make a signal at which the Inspector and panch witnesses would enter the room.
The complainant carried out the plan as arranged and gave the call on which the Inspector and panch witnesses entered the room of the accused.
On seeing the Inspector, the accused removed the currency notes from his pocket and flung them across the wall into the adjoining room.
The notes were collected and when compared with the numbers noted earlier, they tallied.
The hands of the accused were then dipped in sodium bicarbonate solution which, colourless earlier, turned pink.
Similarly the handkerchief in the right side pocket of the trousers of the accused was removed and also dipped in sodium bicarbonate solution.
That too turned pink.
Before the trial court many of the witnesses turned hostile and one of the panch witnesses became mentally deranged.
In appeal it was contended before this Court that (1) the courts below had made free use of the statements made by the witnesses in the course of investigation as if they were substantive evidence and, if they were excluded, the rest of the evidence would not be sufficient to draw the presumption under 1054 section 4(1) of the Prevention of Corruption Act, (2) the fact that the Inspector was the very police officer who laid the trap, should be sufficient to insist on corroboration of his evidence.
Dismissing the appeal, ^ HELD: 1(a) The courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation.
[1059E] (b) Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a police officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witnesses in the manner provided by section 145 of the Evidence Act.
Where any part of such statement is so used any part thereof may also be used in the re examination of the witness for the limited purpose of explaining any matter referred to in his cross examination.
The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of section 32(1) of the Evidence Act or permitted to be proved under section 27 of the Evidence Act.
[1059A C] (c) The contention of the prosecution that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in section 3 of the Evidence Act has no substance.
The definition of the term "proved" does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred.
[1059G] 2(a) The evidence of the Inspector is entirely trustworthy and there is no need to seek any corroboration.
[1059H] (b) There is no rule of prudence which has crystalized into a rule of law, nor any rule of prudence which requires that the evidence of such police officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration.
In the facts and circumstances of a particular case a court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally in the facts and circumstances of another case the court may unhesitatingly accept the evidence of such an officer.
It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule nor can there be any precedential guidance.
[1060A B].
In the instant case the proved facts were that the complainant made a report to the Inspector, and currency notes whose numbers were noted and which were treated with phenol phthalene powder were handed over to the complainant.
The complainant went into the accused 's room and came out after a short while giving the agreed signal.
When the Inspector rushed in, the accused threw the currency notes across the wall into the adjoining room.
His hands and the handkerchief when dipped in sodium bicarbonate solution turned pink and lastly instead of giving a plausible explanation as to how the phenol phthalene powder came to his hands and the handkerchief in his pocket all that he could say was that he "knew nothing about it".
From all these facts the only inference that follows is that currency notes were obtained by the accused from the complainant.
It is not necessary that the passing of 1055 money should be proved by direct evidence, it may also be proved by circumstantial evidence.
The events which followed in quick succession in the present case led to the only inference that the money was obtained by the accused from the complainant.
Under section 114 of the Evidence Act the Court may presume the existence of any fact which is likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case.
One of the illustrations to this section is that the Court may presume that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.
So too in the facts and circumstances of the present case the Court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from the complainant who, a few minutes earlier, was shown to have been in possession of the notes.
Once it is found that the accused had obtained the money from the complainant the presumption under section 4 (1) of the Prevention of Corruption Act is immediately attracted.
The presumption is rebuttable, but in the present case there is no material to rebut the presumption.
The accused was, therefore, rightly convicted by the courts below.
[1061D F] Sita Ram vs The State of Rajasthan AIR 1975 SC 1432; Suraj Mal vs The State (Delhi Administration) AIR 1979 SC 1408 held inapplicable.
There is no force in the contention that persons holding clerical posts could not be called independent witnesses on the ground that they would be under fear of disciplinary action if they did not support the prosecution case.
The respectability and verasity of a witness is not necessarily dependent upon his status in life and it cannot be said that clerks are less truthful and amenable than superior officers.
[1060E]


judgement:
ivil Appeal Nos.
216 217 of 1970.
Appeals by special leave from the Judgment and Order dated 3 12 1968 of the Bombay High Court in Second Appeal Nos.
1232 and 1214/1961.
V. section Desai, R. B. Datar and Lalit Bhardwaj and Naveen Sinha for the Appellants.
section V. Tambwaker for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
On April 15, 1930 Parisa Chougule, executed Exhibit 93, a deed of mortgage in favour of Ganesh, Dattatraya Kulkarni (father of the appellants) for a sum of Rs. 1600 in respect of single item of land.
On August 25, 1933, Parisa Chougule executed Exhibit 92 another deed of mortgage in favour of the same mortgagee for a sum of Rs. 1,000 in respect of ten items of land including the land previously mortgaged under Exhibit 93.
Both the mortgages were possessory mortgages but it appears from evidence that the land was leased back to the mortgagor for a stipulated rent.
Parisa Chougule died on June 15, 1934 leaving behind him three sons, Bhupal an adult and Anna and Dhanpal, minors.
On July 11, 1934, Bhupal borrowed a further sum of Rs. 131 and executed a simple mortgage Exhibit 91 in respect of the very ten 818 items of land covered by Exhibit 92.
On May 1, 1935, Bhupal purporting to act as the Manager of the joint family and the guardian of his minor brother executed a deed of sale Exhibit 90 in favour of Ganesh Dattatraya Kulkarni in respect of four out of the ten items of land mortgaged under Exhibits 93, 92 and 91.
The consideration for the sale was Rs. 3050 and was made up of the amounts of Rs. 1600 Rs. 1000 and Rs. 131/ due under three mortgages Exhibits 93, 92 and 91 respectively and a sum of Rs. 200 received in cash by Bhupal on the date of sale.
Six of the items which were mortgaged were released from the burden of the mortgages.
On September 23, 1946, Anna second son of Parisa became a major.
On August 31, 1951, Dhanpal third son of Parisa became a major.
On August 27, 1953 Anna and Dhanpal filed the suit out of which this appeal arises for a declaration that the sale deed dated May 1, 1935 was not for legal necessity and not for the benefit of the estate and therefore, not binding on them.
They also prayed that joint possession of their two third share may be given to them.
The Trial Court found that there was legal necessity for the sale to the extent of Rs. 2600 only, that the consideration of Rs. 3050 for the sale was inadequate as the lands were worth about Rs. 4000, that there was no such compelling pressure on the estate as to justify the sale and therefore, the sale was not for the benefit of the family and hence not binding on the two plaintiffs.
A decree was granted in favour of the two plaintiffs for joint possession of two third share of the lands subject to their paying a sum of Rs. 133/5 ans/4 ps.
to the second defendant.
On appeal by the second defendant the Assistant Judge, Kolhapur affirmed the finding of the Trial Court that there was legal necessity to the extent of Rs. 2600 only, that the value of the land was Rs. 4,000 and that there was no pressure on the estate justifying the sale.
The Assistant Judge found that there was no evidence to show that the defendant made any bonafide enquiry to satisfy himself that there was sufficient pressure on the family justifying the sale.
He however, held that the suit of the first plaintiff was liable to be dismissed as it was barred by limitation.
He, therefore, modified the decree of the Trial Court by granting a decree in favour of the second plaintiff only for possession of a one third share in the lands subject to payment of a sum of Rs. 866.66 ps.
to the second defendant.
The first plaintiff as well as the second defendant preferred second appeals to the High Court.
The High Court allowed the appeal filed by the first plaintiff and dismissed the appeal filed by the second defendant.
The legal representatives of the second defendant have preferred these appeals after obtaining special leave from this Court under Article 136 of the Constitution.
819 It is clear that these appeals have to be allowed.
The facts narrated above show that out of the consideration of Rs. 3050 for the sale there was undoubted legal necessity to the extent of Rs. 2600 the total amount due under the two deeds of mortgage executed by the father of the plaintiffs.
Out of the ten items of land which were mortgaged, only four were sold and the remaining six items were released from the burden of the mortgages.
The family was also relieved from the burden of paying rent to the mortgagee under the lease deed.
Surely all this was for the benefit of the family.
The value of the land sold under the deed of sale was found by the Courts below to be Rs. 4000.
Even if that be so it cannot possibly be said that the price of Rs. 3000 was grossly inadequate.
It has further to be remembered that there were continuous dealings between the family of the plaintiffs and the family of the second defendant, over a long course of years.
In those circumstances it is impossible to agree with the conclusion of the courts below that the sale was not binding on the plaintiffs.
The courts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale.
We are unable to see any substance in the view taken by the courts below.
When the mortgagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgagors, we do not see how any question of enquiry regarding pressure on the estate would arise at all.
Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale.
In Gauri Shankar & Ors.
vs Jiwan Singh Ors.(1) it was found that Rs. 500 out of the price of Rs. 4000 was not fully accounted for and that there was legal necessity for the balance of Rs. 3500.
The Privy Council held that if the purchaser had acted honestly, if the existence of a family necessity for a sale was made out and the price was not unreasonably low, the purchaser was not bound to account for the application of the whole of the price.
The sale was upheld.
In Niamat Rai and Ors.
vs Din Dayal and Ors.(2) the manager of a joint family sold family property for Rs. 34,500 to satisfy pre existing debts of the extent of Rs. 38,000.
It was held that it was sufficient to sustain the sale without showing how the balance had been applied.
820 In Ram Sunder Lal & Anr.
vs Lachhmi Narain and Anr.(1).
, the vendee the sale in whose favour was questioned fourteen years after the sale, was able to prove legal necessity to the extent of Rs. 7744 out of a total price of Rs. 10,767.
The Privy Council after quoting a passage from the well known case of Hanoomanpersaud Pandey vs Mt. Babooee Munrai Koonweree,(2) upheld the sale.
The principle of these decisions has been approved by this Court in Radhakrishandas and Anr.
vs Kaluram.(3).
The learned counsel for the respondents relied upon the decision of this Court in Balmukand vs Kamla Wati & Ors.(4) That was a suit for specific performance of an agreement of sale executed by the manager of the family without even consulting the other adult members of the family.
The object of the sale was not to discharge any antecedent debts of the family nor was it for the purpose of securing any benefit to the family.
The only reason for the sale of the land was that the plaintiff wanted to consolidate his own holding.
The Court naturally found that there was neither legal necessity nor benefit to the estate by the proposed sale and the agreement therefore, could not be enforced.
We do not see what relevance this case has to the facts of the present case.
We accordingly allow the appeals and dismiss the suit with cost throughout.
N.K.A. Appeals allowed.

summary/full:
A mortgagor executed two deeds of mortgage in favour of the father of the appellants for Rs. 1600 and Rs. 1000 in respect of certain lands.
Both the mortgages were possessory mortgages but the land was leased back to the mortgagor for a stipulated rent.
The mortgagor died leaving behind him three sons, one adult and two minors.
The adult son borrowed a further sum of Rs. 131 by executing a simple mortgage and purporting to act as the Manager of the joint family and the guardian of his minor brothers, executed a deed of sale in favour of the father of the appellants in respect of four out of ten items of land previously mortgaged.
The consideration for the sale was Rs. 3050 which was made up of Rs. 1600.
Rs. 1000 and Rs. 131 due under three previous mortgages respectively and Rs. 200 received in cash on the date of sale.
The minor sons on becoming major filed a suit out of which this appeal arises, for a declaration that the sale deed executed was not for legal necessity, nor for the benefit of the estate and, therefore, not binding on them.
They also prayed for joint possession of their 2/3rd share.
The trial court found that there was legal necessity for the sale to the extent of Rs. 2600 only, the consideration of Rs. 3050 for the sale was inadequate as the lands were worth about Rs. 400 and that there was no compelling pressure on the estate to justify the sale and therefore the sale was not for the benefit of the family and hence not binding on the plaintiffs.
A decree was granted in their favour for joint possession of 2/3rd share of the lands subject to certain payment to the second defendant.
On appeal by the second defendant, the Assistant Judge held the suit of the first plaintiff to be barred by time and therefore modified the decree in favour of the second plaintiff.
On appeal by the first plaintiff and second defendant, the High Court allowed the appeal by the first plaintiff and dismissed the appeal filed by the second defendant.
Accepting the appeal of the legal representatives of the second defendant.
^ HELD: Out of the sale consideration of Rs. 3050 there was undoubted legal necessity to the extent of Rs. 2600 the total amount due under the two deeds of mortgage executed by the father of the plaintiffs.
Out of the ten items which were mortgaged, only four were sold and the remaining six items were released from the burden of the mortgages.
The family was also relieved from one burden of paying rent to the mortgagee under the lease.
All this 817 was for the benefit of the family.
The value of the land sold under the deed of sale was found by the Courts below to be Rs. 4000.
Even if that be so it cannot possibly be said that the price of Rs. 3000 was grossly inadequate.
Further there were continuous dealings between the family of the plaintiffs and the family of the second defendant over a long course of years.
In these circumstances it is impossible to say that the sale was not binding on the plaintiffs.
The Courts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale.
When the mortgagee was himself the purchaser and when the greater portion of the consideration went in discharge of the mortgages no question of enquiry regarding pressure on the estate would arise at all.
Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale.
[819 A E] Gauri Shankar & Ors.
vs Jiwan Singh & Ors.
A.I.R. 1927 P.C. 246 Niamat Rai & Ors.
vs Din Dayal & Ors.
1927 A.I.R. P.C. 121, Ram Sunder Lal & another vs Lacchmi Narain and another ; Hanooman Persaud Pandey vs Mt. Babooee Munrai Koonweree ; Radhakrishendas and another vs Kaluram A.I.R. 1967 S.C. 574, referred to.
Balmukand vs Kamla Wati & Ors.
A.I.R. 1964 S.C. 1385 held inapplicable.


judgement:
ition (Crl.) No. 1414 of 1979.
Under Article 32 of the Constitution.
Ram Jethamalani and Harjinder Singh for the Petitioner.
U. R. Lalit, E. C. Agarwala and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by KAILASAM, J.
The petitioner is brother of Virendra Ambalal Siroya who was detained by an order of detention dated 31 8 1979 issued by Additional Secretary to the Government of India under section 3(1) of the .
The detenu was served with the grounds of detention on 5 9 1979.
The counsel for the detenu made an application on 17 9 1979 for supply of documents, and statements recorded and relied on in the grounds of detention.
Before the documents were supplied, an incomplete representation was made by the detenu on 22 9 1979.
The documents were supplied on 25 9 1979, 27 9 1979 and 3 10 1979.
The detenu again made a second representation on 5 10 1979 and requested that the order of detention may be revoked by the Central Government.
Mr. A. K. Sen, the learned counsel for the petitioner, submitted that the representation requesting the Central Government to order the revocation under section 11 of the Act was not forwarded by the detaining authority to the Central Government and as such the detention is illegal.
In the memorandum of grounds in his writ petition at paragraph XIV the detenu submitted that he made representation to the Central Government and that the Central Government had not considered the representation at all.
In paragraph XV the detenu contended that the second representation was an application for revocation under section 11 of the Act wherein he specifically requested that the Central Government should revoke the order.
The said representation was not considered by the Central Government.
It was submitted that non consideration of the representation by the Central Government vitiated the detention order.
In reply the detaining authority stated in paragraph 15 as follows: "It is submitted that the consideration of representation of the detenu by the detaining authority is perfectly valid and legal and in accordance with the law.
It is, however, denied that merely because it was not considered by the Central Government, the detention order is vitiated in any way." 1080 It is clear from the statement that the representation was not forwarded to the Central Government.
The plea on behalf of the detaining authority is that merely because the representation was not considered by the Central Government, the detention order would not be vitiated.
The representation of the detenu dated 5 10 1979 is marked as Annexure 'E '.
It states that it is a further representation in the matter of his detention.
After setting out the various grounds, the relief asked for in paragraph 5 runs as follows: "The petitioner prays that: (a) That the order of detention be revoked by the Central Government.
(b) This further representation be placed before COFEPOSA Advisory Board alongwith the earlier representation.
(c) That the Advisory Board be pleased to report to the Central Government to revoke the impugned order of detention.
" The request of the detenu is clear: He prayed for the revocation of the order of detention by the Central Government.
It is not the case of the detaining authority that he did not understand the representation as being intended for the Central Government.
On the other hand, his plea is that the mere fact that the Central Government has not considered the representation would not vitiate the order of detention.
The detaining authority is the Additional Secretary, Government of India, Ministry of Finance and it is not disputed that a communication to that Central Government can be properly addressed by sending it to the Additional Secretary, Government of India, Ministry of Finance.
It is admitted that the representation was properly addressed to the Central Government.
The Central Government is empowered to revoke the order of detention at any stage.
It was submitted that the order of revocation by the Central Government can only be passed after the order of detention in confirmed by the detaining authority and the Advisory Board.
The power conferred on the Central Government by section 11 is wide enough to enable the Central Government to revoke the detention order at any stage for the words used are a detention order may at any time be revoked or modified.
The power of the Central Government to revoke the order of detention implies that the detenu can make a representation for exercise of that power.
Any petition for revocation of an order of detention should be dealt with reasonable expedition.
In this case it is the main ground urged 1081 on behalf of the detenu that the petition of the 5th of October, 1979 was not forwarded to the Central Government and consequently no order has been passed on that petition up to date.
In the course of arguments, Mr. A. K. Sen on behalf of the detenu submitted that even the earlier representation was addressed to the Central Government which was also not forwarded.
We do not think that we should entertain this plea as it was not pleaded in the memorandum of grounds that the first representation was to the Central Government but made for the first time in the Court before us.
In any event, it is clear that a representation properly addressed by the detenu to the Central Government was not forwarded to the Central Government and as such no action had been taken up to date.
It may be permissible for the Central Government to take reasonable time for disposing any revocation petition.
But it would not be justified in ignoring the representation for revocation of the detention as a statutory duty is cast upon the Central Government.
It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the petition, declining to order for revocation.
The question that arises for consideration is, as to what will be the consequence if a properly addressed petition is not forwarded to the Central Government and as such left unattended for a period of nearly four months.
We feel that in such circumstances the detention cannot be justified as being according to the procedure.
In the circumstances we do not feel that we will be justified in sending the representation to the Central Government for disposal at this stage.
Taking all the facts and circumstances of the case, we feel that the continued detention of the detenu cannot be held to be according to procedure.
His release has already been ordered.
P.B.R. Petition allowed.

summary/full:
The petitioner 's brother was detained by an order of detention dated 31st August, 1979 under section 3(1) of the and the grounds of detention were served on him on 5th September, 1979.
An application was made on 17th September, 1979 for supply of documents and statements recorded and relied on in the grounds of detention.
On 22nd September, 1979 he made an incomplete representation.
The documents were supplied on 25th September, 27th September and 3rd October, 1979.
The detenu made a second representation on 5th October, 1979 requesting that the order of detention be revoked by the Central Government but no action was taken on them till the date of hearing.
In the writ petition it was alleged that the first representation as well as the second representation requesting for the revocation of the order under section 11 of the Act were not considered by the Central Government and that non consideration of the representation vitiated the detention order.
The detaining authority on the other hand contended that the mere fact that the representation was not considered by the Central Government did not vitiate the order of detention.
Allowing the petition, ^ HELD: The continued detention of the detenu cannot be held to be according to procedure.
[1081F] If a properly addressed petition is left unattended for a long period of time the detention order cannot be justified as being according to procedure.
[1081 E] The power conferred on the Central Government by section 11 of the Act is wide enough to enable that Government to revoke the detention order at any stage for the words used are a detention order may at any time be revoked or modified.
Any petition for revocation of an order of detention should be dealt with with reasonable expedition.
It may be permissible for the Central Government to take reasonable time for disposing of a petition for revocation of an order of detention but it would not be justified in ignoring the representation because a statutory duty is cast upon the Central Government.
It is necessary that the Government should apply its mind and either revoke the order of detention or dismiss the petition.
[1080G H] In the instant case the representation which was properly addressed by the detenu to the Central Government was not forwarded to that Government and 1079 as such no action had been taken till the date of hearing.
There is no justification in sending the representation to the Central Government at this very late stage.
[1081C&E]


judgement:
N: Criminal Appeal Nos.
237 238 of 1974.
Appeal by special leave from the Judgment and Order dated 14 8 1973 of the Delhi High Court in Crl.
Revision Nos. 146 and 153 of 1971.
A. K. Sen, Gobind Das, A. N. Karkhanis, Sridharan and Mrs. section Bhandare for the Appellant.
H. section Marwah and M. N. Shroff for the Respondent.
1083 The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Can political thesis or historical truth be so presented as to promote feelings of enmity, hatred or ill will between different religious groups or communities, is the question which we are called upon to answer in these two criminal appeals.
The appellant in the two criminal appeals is the editor, publisher and printer of a monthly magazine going by the name 'Mother India '.
He wrote two articles under the captions "A tale of two communalisms" and "Lingering disgrace of history".
On complaints filed by the Superintendent of Police, Delhi, under section 153 A of the Indian Penal Code, he was convicted in respect of each of these articles in separate cases and sentenced in each case to suffer simple imprisonment for a period of four months and to pay a fine of Rs. 1000/ by the Additional Chief Judicial Magistrate, Delhi.
On appeal the learned Sessions Judge, Delhi, confirmed the conviction in both the cases but reduced the sentence of fine to Rs. 500/ in each case.
This was confirmed by the High Court.
The appellant has preferred these appeals by Special Leave of this Court.
Shri A. K. Sen, learned counsel for the appellant submitted that if the articles were read as a whole it would be patent that the article "A tale of two communalisms" was no more than a political thesis and the second article "Lingering disgrace of history" was no more than a protest based on historical truths against the naming of roads in Delhi after Moghul emperors.
He contended that neither article contained any attack on any religion and, therefore, there was no question of promoting and attempting to promote feelings of enmity, hatred or ill will between different religious groups on grounds or religion.
The convictions under section 153 A were, therefore, wrong, he submitted.
Section 153 A(1) (a) provides, "whoever by words, either spoken or written, or by signs or by visible representations or otherwise, promotes, or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred, or ill will between different religious, racial language or regional groups or castes or communities shall be punished with imprisonment which may extend to three years, or with fine, or with both".
It is seen that section 153A(1).
(a) is not confined to the promotion of feelings of enmity etc.
on grounds of religion only as argued by Shri Sen but takes in promotion of such feelings on other grounds as well such as race, place of birth, residence, language, caste or community.
In the present case we have to consider the question whether the two articles promote on grounds of religion or community, feelings of enmity, hatred or ill will between different religious groups or communities.
1084 The first of the articles "A tale of two communalisms" does begin as a sort of political thesis.
According to the author "communalism is an instrument of political minorities".
His thesis is that militant minorities thrive on communalism.
If he wanted to develop his thesis on those lines no one could object.
But, he referred to Muslims generally as "a basically violent race" and went on to say "communalism is, therefore, an instrument of a minority with a racial tradition of rape, loot, violence and murder as is found in India with a Muslim population of 12.7%.
In Pakistan the Hindu minority is 6.6% but because its racial tradition is different it does not indulge in communal riots.
Three essentials are necessary for violent communalism.
The community must be a minority, the minority must be sizable and the minority must have a tradition of murder and violence.
We find these three essentials in the Muslim community of India".
He then stated in the article that in Pakistan and particularly in East Bengal peace loving and terror struck Hindu minority was being eliminated by periodical killing and conversions on a mass scale. "Young Hindu males were compelled to undergo vasectomy operations, young and pretty Hindu girls became the victims of Islamic beds of lust".
It is then said "It is not in the nature and religion of the Hindu of India to be intolerant and blood thirsty like the followers of Islam".
According to him the only answer to the problem of communalism was to declare India a Hindu State.
In our opinion there cannot be the slightest doubt that the article is not even thinly veiled as a political thesis; it is an undisguised attempt to promote feelings of enmity, hatred and ill will between the Hindu and the Muslim communities.
It is designed to fan the sparks of ill will and hatred on ground of community.
The reference to the alleged Muslim tradition of rape, loot, violence and murder and the alleged terror struck into the hearts of Hindu minority in a neighbouring country by periodical killings, in the context of his thesis that communalism is the instrument of a militant minority can lead to no other inference.
The second article 'Lingering disgrace of history ' is said to be a protest against the naming of Delhi roads after the Moghul emperors who according to the author were lustful perverts, rapists and murderers.
According to the learned counsel the attack was directed against the Moghul rulers and not against the Muslims of India.
It was also said that all the statements in the article about the lusts and perversions of the Moghul rulers were plain historical truths.
On a full reading of the article it reveals much more than a protest against naming Delhi roads after Moghul rapists and perverts.
At one place it is said "From Mohammed Ibn Qasim, who landed in India in June 1085 712 A.D. with 6000 Muslim cut throats, to Mohomed Ali Jinnah, who cut this ancient cradle of a peace loving human race into three bleeding bits in August, 1947, we have had 1235 years of bloodstained history in which our life has been constantly punctuated by endless raids, rapes, loot, arson and slaughter.
In all these years Hindus have given millions of men, women and children as hostages to Islam to buy some peace and preserve their own religion.
They are still doing so.
God alone knows how long this process of paying and appeasing Muslims will go on but it cannot go on for long if the family planning designs of the present secular government succeed.
Because then pretty soon there would be no Hindu left to pay.
"It is difficult to predict the future of the ancient Hindu race.
It has no future at all in Pakistan where a subtle and systematic genocide of the 10 million Hindus there has now been undertaken at State level by enforcing vasectomy operations on Hindu males and tubectomies on Hindu females, and by raping women and converting young children to Islam.
"But as long as the Hindu race lasts and survives in India its only cradle and grave in the whole world, it will be worthwhile setting before its children the ideals of its numerous Hindu heroes and nation builders rather than reminding them constantly of these Moghul brutes and tyrants who burnt Hindu homes, ravished Hindu mothers and sisters, slaughtered Hindu men and harassed and kidnapped and converted Hindu children".
After referring to various perversities and tyrannies of the Moghul rulers ending with Aurangzeb, he said: "To have a street named after this Mughal bastard in New Delhi, the capital of India, is not only a disgrace to the Hindus but a crying insult to the brave community of Sikhs.
Had the Muslims been insulted thus, they would not only have burnt every house on the road named after the tyrant but also set fire to the whole damned city.
The Muslims know how to guard their traditions".
He expressed the opinion that some of the ancient relics that reminded Hindus of their shame and disgrace made Muslims proud of the foul deeds of their ancestors.
He made an appeal that a beginning should be made to wipe out 'our thousand year old shame ' by changing the "Muslim names of roads" which 'remind us of the inhuman atrocities committed on our men, women and children '.
If the Moghuls raped, looted, killed and sinned, the author 's view appears to be that they did so as "Muslim sadists".
The author goes so far as to say that today 's Muslims are proud of the foul deeds of "their ancestors", the Moghuls being considered by the author as the progenitors 1086 of the present day Indian Muslims.
There is no question that the article is calculated to rouse feelings of enmity, hatred and ill will between Muslims and Hindus.
Whether communalism is the weapon of an aggressive and militant minority as suggested by the accused or the "shield of a nervous and fearful minority", the problem of communalism is not solved by castigating the members of the minority community as intolerant and blood thirsty and a community with a tradition of rape, loot, violence and murder.
Whether the Moghuls were rapists and murderers or not and whether the Delhi roads should be named after them or not it was wrong to present the Moghuls as the ancestors of today 's Muslims and to villify the Muslims as the proud descendants of the "foul" Moghuls.
We are convinced that both the articles do promote feelings of enmity, hatred and ill will between the Hindu and Muslim communities on grounds of community and this cannot be done in the guise of political thesis or historical truth.
The appeals are dismissed.
V.D.K. Appeals dismissed.

summary/full:
Dismissing the appeals, by special leave the Court, ^ HELD: Section 153A(1) is not confined to the promotion of feelings of enmity etc.
on grounds of religion only, but takes in promotion of such feelings on other grounds as well such as race, place of birth, residence, language, caste or community.
[1083G] In the instance case: Both the articles do promote feelings of enmity, hatred and ill will between the Hindu and Muslim communities.
[1086C] (i)|The first article "A tale of two Communalisms" is not even thinly veiled as a political thesis; it is an undisguised attempt to promote feelings of enmity, hatred and ill will between the Hindu and the Muslim communities.
It is designed to fan the sparks of ill will and hatred on ground of community.
The reference to the alleged Muslim tradition of rape, loot, violence and murder and the alleged terror struck into the hearts of Hindu minority in a neighbouring country by periodical killings, in the context of his thesis that communalism is the instrument of a militant minority can lead to no other inference.
[1084E F] (ii)|The second article 'Lingering disgrace of history ' goes further and is calculated to rouse feelings of enmity, hatred and ill will between Muslims and Hindus.
It was wrong to present the Moghuls as the ancestors of today 's Muslims and to willify the Muslims as the proud discendants of the "foul" Moghuls.
[1084G, 1086A, B, C] Feelings of enmity, hatred or ill will between different religious groups or communities cannot be promoted in the guise of political thesis of historical truth.
[1086C]