judgement:
minal Appeal No. 118 of 1964.
Appeal from the judgment and order dated March 2, 1964 of the Allahabad High Court in Criminal Appeal No. 2531 of 1963 referred No. 160 of 1963.
K. L. Sharma and Harbans Singh for the appellant.
O. P Rana, for the respondent.
LS5SCI 19(a) 266 The Judgment Of SARKAR, C.J. and MUDHOLKAR, J. was delivered by MUDHOLKAR, J. BACHAWAT, J. delivered a separate Opinion.
Mudholkar, J.
The Additional Sessions Judge, Kumaon, after convicting the appellant Sita Ram of an offence under section 302, Indian Penal Code for the murder of his wife Sindura Rani, has sentenced him to death.
The High Court of Allahabad affirmed his conviction but reduced the sentence to one of imprisonment for life.
The fact that Sindura Rani met with a homicidal death is not in dispute.
What is, however, contended on behalf of the appellant is that there is no evidence on the basis of which his conviction could be based.
Admittedly there are no eye witnesses to the occurrence.
The prosecution case against him rests on the following material: (1) motive; (2) opportunity; (3) subsequent conduct; (4) false explanation and (5) confessional statements.
There is ample evidence on record to show that the relations between the appellant and his wife were very much strained, that the two were living apart and that this was because the appellant suspected that his wife was a woman of loose character.
This evidence consists of the testimony of some near relatives and also of several letters written by the appellant to his wife Sindura Rani, to his mother in law Inder Kaur (P.W. 2) and to his brother in law Tilak Raj (P.W. 1).
The appellant had denied that the letters were in his hand writing but it has been found by both the courts below that they were in fact written by him.
The finding of each of the two courts below that the relations between the appellant and his wife were strained because the appellant not merely suspected the fidelity of his wife but also charged her with unchastised being one of fact cannot be lightly permitted to be questioned in an appeal by special leave.
No ground has been made out by learned counsel which would justify our looking into the evidence for ourselves.
Similarly, on the question of opportunity, Sindura Rani who had gone to stay with her people had been asked by the appellant to return home on the pretext that one of their children was ill and accordingly she arrived at Kashipur where the appellant lived only 5 or 6 days prior to the incident.
Since her return she and the appellant were the only two adult persons living in the house of the appellant.
The only other person living with them was their daughter about two years old.
When the Sub Inspector of Police arrived on the morning of September 15, 1962 after receiving a report that the appellant 's house was locked from outside and the cry of a child from inside could be heard, found the outer door of the house locked.
After breaking it open he found a lantern burning by the side of the dead body of Sindura Rani.
From these facts the courts below were justified in coming to the conclusion that the appellant had an 267 opportunity to commit the murder of his wife Sindura Rani.
The appellant 's defence that he had gone to Punjab along with one Pritam Singh on September 13, 1962 and could return from there on September 19, has not been accepted by the two courts below in the absence of any material to substantiate it.
In addition to these there is the fact that the appellant could not be found till September 19, on which date he surrendered him.
self before the court.
It would be reasonable to infer from this that he was absconding till this date.
The explanation which the appellant gave concerning his absence has been rightly rejected as false.
In the circumstances there was adequate material before the courts below upon which his conviction could be based.
In addition to this circumstantial evidence the prosecution placed reliance upon exhibit Ka 9.
This is a letter dated September 14, 1962 addressed to the 'Sub Inspector ' and bears the signature of the appellant in Urdu.
It reads thus: "I have myself committed the murder of my wife Smt.
Sindura Rani.
Nobody else perpetrated this crime.
I would appear myself after 20 or 25 days and then will state everything.
One day the law will extend its hands and will get me arrested.
I would surrender myself.
in Urdu).Sita Ram Naroola, 14th September, 1962.
" On the back of this letter is written the following: "It is the first and the last offence of my life.
I have not done any illegal act nor I had the courage to do that, but this woman compelled me to do so and I bad to break the law.
This letter was found on a table near the dead body of Sindura Rani.
It was noticed by the Sub Inspector Jagbir Singh, P.W. 16 and seized in the presence of three persons who attested the seize memo and were later examined as witnesses in the case.
The prosecution has established satisfactorily that the letter is in the had writing of the appellant and that the signature it bears is, also that of the appellant.
Learned counsel for the appellant has challenged, the admissibility of this letter on the ground that it amounts to a confession to a police officer and that, therefore, section 25 of the Evidence Act renders it inadmissible in evidence.
We, do not think that the objection is well founded.
No doubt, the letter contains a confession and is also addressed to a police, officer, The at cannot make it a confession made to a police officer which is within the bay created by section 25 of the Evidence Act, The police officer was not nearby when the letter was written or knew that it was being written.
In such circumstance quite obviously the letter would not,, 268 have been a confession to the police officer if the words "SubInspector" had not been written.
Nor do we think it can become one in similar circumstances only because the words "Sub Inspector" had been written there.
It would still have not been a confession made to a police officer for the simple reason that it was not so made from any point of view.
We agree with the High Court, therefore, that the confession contained in exhibit Ka 9 is admissible and that it is an additional circumstance which can be pressed in aid in support of the charge against the appellant.
However, as already stated, even without this confessional statement there was sufficient material before the courts below on the basis of which the appellant 's conviction could be sustained.
The appeal is without any merit and is accordingly dismissed.
Bachawat, J Section 25 of the reads: "No confession made to a police officer shall be proved as against a person accused of any offence.
" In my opinion, the letter, exhibit Ka 9, is a confession made to a police officer, and is not admissible in evidence against the appellant.
The letter contained a confession, and was addressed to the Sub Inspector.
The appellant wrote the letter with the intention that it should be received by the Sub Inspector, kept it on a table near the dead body of his wife and left the, house after locking it.
The lock wag broken open and the letter was recovered by the Sub Inspector, Kasipur, to whom the letter was written.
The Sub Inspector received the letter as effectively 'as if it was sent to him by post or by a peon.
It is said that the appellant made no confession to the sub Inspector, inasmuch as the officer was 'not present near the appellant when he wrote the letter.
I do not see why a confession cannot be made to a police officer unless he is present in the immediate vicinity of the accused.
A confession can be made to a police officer by an oral message to him over the telephone or the radio as also by a written message Communicated to him through post, messenger or otherwise.
The presence or absence 'of the police officer near the accused is not decisive on the question whether the confession is hit by section 25.
A confession to a stranger though made in the presence of a police officer is not hit by section 25.
On the other handful confession to a police officer is within the ban of section 25, though it was not made in his presence.
A confessional letter written to a police officer and sent to him by post, messenger or otherwise is not outside the ban of section 25.
because the police officer ignorant of the letter at the moment when it was being written.
269 In R.V. Hurribole(1) Garth,C.J. Said that s.25 is an enact Ment to which the Court should give 'the fullest effect.
He added: "I think it better in construing a section such as the 25th, which was intended as a wholesome protection to the accused, to construe it in its widest and most popular signification." In its widest and most popular signification, the phrase " confession Made to a police officer" includes a confession made to a police officer in a letter written to him and subsequently received by him.
We should not cut down the wholesome protection of section 25 by refined arguments.
I am,, therefore, of the opinion that the Courts below were in error in admitting exhibit Ka 9 against the appellant.
I however, agree that, apart from exhibit Ka 9 there are sufficient materials on the record establishing the guilt of the appellant.
The appeal must, therefore, fail.
The appeal is dismissed.
Appeal dismissed.
(1) [1876] I.L.R. I cal.
207 215 216.

summary/full:
The appellant was convicted for under under section 302 Indian Penal Code.
The prosecution relied on amongst other materials, a letter.
The letter contained a confession and was addressed to the Sub Inspector.
The appellant wrote the letter with the intention that it should be received by the Sub Inspector, kept it near the dead body and left the house after locking it.
The lock was broken open and the letter was recovered by the Sub Inspector.
In appeal to this Court the admissibility of this letter was challenged.
HELD: (Per Curium) There was sufficient material on the record, apart from this letter, establishing the guilt of the appellant.
Per Sarkar, C.J. and Mudholkar, J: The letter was admissible in evidence.
No doubt, the letter contained a confession and was addressed to a police officer.
That could not make it a confession made to the Police officer which is within the bar created by section 25 of the Evidence Act.
The Police Officer was not nearby when the letter was written or knew that it was being written.
In such circumstances quite obviously the letter would not have been a confession to the police officer if the words "Sub Inspector" had not been written.
Nor it can become one in similar circumstances only because the words "Sub Inspector" has been written there.
It would still have not been a confession made to a police officer for the simple reason that it was not so made from any point of view.
[267 H 268 B] Per Bachawat J., The letter was inadmissible in evidence and was a confession made to a police officer.
[268 D E] A confession to a police officer was within the bar of section 25, though it was not made in his presence.
A confessional letter written to a Police officer and sent to him by post, messenger or otherwise is not outside the ban of section 2,5 because the police officer was ignorant of the letter at the moment when it was being written.
[268 G].
R. V. Hurribole, Cal. 207, approved.


judgement:
Appeals Nos. 209 and 210 of 1953.
Appeals by special leave against the Judgment and Orders dated 4th April, 1953, of the High Court of Judicature of Mysore at Bangalore (Medapa C. J. and Vasudevamurthy J.) in Civil Petitions Nos, 20 and 21 of 1953, 538 M.Ramaswamy, Senior Advorate, (B. Neelakanta, with him) for the appellant.
M. C. Setalvad, Attorney General for India, (Porus A. Mehta, with him) for the respondent.
1953 .
December 16.
The Judgment of the Court was delivered by PATANJALI SASTRI C. J.
These two connected appeals arise out of applications made to the High Court of Judicature at Bangalore under article 226 of the Constitution challenging the jurisdiction of the Income tax Officer, Special Survey Circle, Bangalore, to assess the appellant to income tax and super tax on his income accruing prior to April 1, 1950, in the State of Mysore and praying for the issue of appropriate writs in that behalf.
The applications were dismissed by the court and leave to appeal having been refused, the appellant has brought these appeals by special leave of this court.
It is a matter of admission that the officer making the assessments was an officer Appointed under the Indian Income tax Act,, 1922, and that in making such assessments he was applying the income tax law in force in the State of Mysore down to the end of the year of account 1948 49.
The officer was exercising jurisdiction in the State by virtue of the proviso to section 13 of the Indian Finance Act, 1950, which reads as follows: Repeals and Savings. (1) If immediately before the 1st day of April, 1950, there is in force in any Part B State other than Jammu and Kashmir or in Manipur, Tripura or Vindhya Pradesh or in the merged territory of Cooch Behar any law relating to income tax or super tax or tax on profits of business, that law shall cease to have effect except for the purposes of.
the levy, assessment and collection of income tax and super tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income tax Act, 1922, for the year ending on the 31st day of March, 1951, or for any subsequent year or, as the case may be, the levy, assessment and 539 collection of the tax on profits of business for any chargeable accounting period ending on or before the 31st day of March, 1949: Provided that any reference in any such law to an officer, authority, tribunal or court shall be construed as a reference to the corresponding officer, authority, tribunal or court appointed or constituted under the said Act, and if any question arises as to who such corresponding officer, authority, tribunal or court is, the decision of the Central Government thereon shall be final.
It is contended that the proviso is ultra vires and void as the Union Parliament had no power to make a law authorising any officer or authority or Tribunal or Court appointed or constituted under the Indian Inconm tax Act, 1922, to levy, assess and collect incometax and super tax payable under the Mysore law prior to the commencement of the Constitution of India.
The contention is based on two grounds: namely, firstly, on general constitutional principles the Union Parliament had no power to make a law, having retrospective operation with reference to the pre Constitution period; and secondly, the Union Parliament is prohibited by article 277 of the Constitution by necessary implication from making a law grafting on the Mysore income tax law the machinery for assessment and collection provided under the Indian Income tax Act, 1922, for purposes of assessment thereunder.
So far as the first ground is concerned, the case is governed by the judgment just delivered in the Rajasthan case [Union of India vs Madan Gopal Kabra (1) ].
It remains only to deal with the second ground based on article 277.
That article reads thus : "Any taxes, duties,.cesses or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, notwithstanding that (1) Infra p. 541.
71 540 those taxes, duties, cesses, or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.
" It was urged that, inasmuch as the article authorises, among others, the income tax and super tax, which was being lawfully levied by the Government of Mysore prior to the commencement of the Constitution to be levied and to be applied to the same purposes even after the commencement of the Constitution until provision to the contrary is made by Parliament by law, and no such law was made by Parliament till April 1, 1950, when the Indian Finance Act, 1950, was enacted, it followed by necessary implication, the Mysore law of income tax must be applied for the levy, assessment and collection of such taxes and, as the legislative power conferred on Parliament by article 245 is subject to the provisions of the Constitution including article 277, Parliament had no power to legislate, grafting officers and authorities.
appointed under the Indian Income tax Act, on the Mysore State, for the levy, assessment and collection of the tax under the State law.
We see no force in this argu ment.
While article 277 undoubtedly authorises the continued levy of taxes lawfully levied by the Government of the State before the commencement of the Constitution and their application to the same purposes as before, even after the Constitution came into force, there is nothing in the article to warrant any implication that such taxes should continue to be levied, assessed and collected by the same State authorities as before the Constitution.
As the High Court rightly pointed out, it would obviously have been inconvenient and unnecessary to have officers appointed under the Mysore Income tax Act continuing to function only in respect of the earlier assessment years side by side with officers appointed under the Indian Income tax Act also functioning in the State for assessments subsequent to April 1, 1950.
Both as a measure.
of economy and with a view to smooth and efficient management, it 541 was obviously necessary and desirable that the changeover from the Mysore income tax law to the Indian Income tax Act should be in the way provided by section 13 of the Indian Finance Act, 1950.
We find nothing in article 277 of the Constitution to preclude Parliament making a law providing for the levy and collection of income tax and super tax under the Mysore Act through authorities appointed under the Indian Income tax Act.
Accordingly, we hold that the Income tax Officer, Special Survey Circle, Bangalore, had jurisdiction to assess the appellant to income tax and super tax in respect of the income of the period prior to the commencement of the Constitution.
The appeals fail and are dismissed with costs.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The assessee challenged the jurisdiction of the Income tax Officer, Special Survey Circle, Bangalore, to assess income tax and super tax on his income accruing prior to April 1, 1950, in the State of Mysore, on the ground that the proviso to section 13 of the Indian Finance Act, 1950, by virtue of which he was exercising his power was ultra vires and void as the Parliament had no pow or to make a law authorising any officer appointed under the Indian Income tax Act to levy tax under the Mysore law prior to the Constitution.
It was contended (i) that on general constitutional principles the Union Parliament had no power to make a law having retrospective effect with reference to pre Constitution period, (ii) that the Parliament was also prohibited by article 277 from making a law authorising such officers as in the present case to mot in the State of Mysore: Held, (repelling the contentions) (i) that the Parliament had such power vide the judgment delivered in Case No. 296 of 1951, (ii) that while article 277 authorises the continued levy of taxes lawfully levied by the Government of the State before the commencement of the Constitution and their application to the same purposes as before, even after the Constitution came into force, there is nothing in the article to warrant any implication that such taxes should continue to be levied, assessed and collected by the same State authorities as before the Constitution and there is nothing in article 277 to preclude Parliament making a law providing for the levy and collection of income tax and super tax under the Mysore Act 'through authorities appointed under the Indian Income tax Act.


judgement:
Appeal No. 356 of 1965.
Appeal by special leave from the judgment and decree dated October 27, 1964, of the Madhya Pradesh High Court in Second Appeal No. 240 of 1964.
B. Sen and M. section Gupta, for the appellants.
section T. Desai and A. G. Ratnaparkhi, for the respondents.
The Judgment of the Court was delivered by Sarkar, J.
The first respondent Tikam Das had let out a house in the city of Jabalpur to the second respondent Surya Kant Naidoo.
Sometime in 1961 Tikam Das, herein referred to as the landlord, served a notice on Surya Kant, herein referred to as the tenant, terminating the tenancy and later in the same year filed a suit in a civil court against the latter for ejectment.
On June 23, 1962, by consent of parties, a decree for ejectment was passed in that suit in favour of the landlord against the tenant.
The appellants who were occupying the premises as sub tenants under the tenant had not been made parties to the suit.
On June 25 and 26, 1962, the appellants served notices on the landlord under section 15(2) of the Madhya Pradesh Accommo dation Control Act, 1961 which had come into force on Decem ber 30, 1961, claiming that as the tenant had sub let the premises to them before the Act had come into force with the consent of the landlord, they had become his direct tenants under section 16(2) of the Act and on June 28, 1962, the appellants filed a suit against both the landlord and the tenant in a civil court claiming a declaration that they had in the circumstances become direct tenants of the premises under the landlord.
On June 30, 1962, the landlord sent a reply to the notices sent by the appellants in which he denied that the sub letting by the tenant had been with his consent or was lawful.
It does not appear that the landlord had put his decree in execution for evicting the appellants.
One of the points canvassed in the High Court was whether in view of section 45(1) of the Act a civil court was competent to entertain the appellants ' suit and it held that it was not and in that view of the matter dismissed the suit.
The question is whet her the High Court was right.
The Act established certain authorities called Rent Controlling Authorities and gave them power to decide various matters.
Sub 130 ,section (1) of section 45 states that "no civil court shall entertain any suit or proceeding in so far as it relates. to any. . matter which the Rent Controlling Authority is empowered by ,or under this Act to decide".
If, therefore, the suit related to a matter which a Rent Controlling Authority had jurisdiction to decide, the civil court would have no jurisdiction to entertain it.
Now the appellant 's suit was for a declaration that they had .become direct tenants under the landlord by virtue of section 16(2) of the Act.
That provision is in these terms section 16.
(1) (2) Where, before the commencement of this Act, the interest of a tenant in respect of any accommodation has been determined without determining the interest of any sub tenant to whom the accommodation either in whole or in part had been lawfully sub let, the subtenant shall, with effect from the date of the commencement of this Act be deemed to have become a tenant holding directly under the landlord on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.
Clearly the appellants would not be entitled to the benefit of this provision unless the sub letting to them was lawful.
This is where their difficulty arises.
Sub section (2) of section 15 deals with the case of a sub letting before the Act and provides for a notice of the sub letting being given to the landlord by the tenant and the sub tenant.
There is no dispute that the sub letting to the appellants was before the Act and they had given the notice.
The subletting, therefore, comes within sub section
(2) of section 15.
Then we come to sub section
(3) of section 15 which provides, "Where in any case mentioned in sub section (2), the landlord contests that the accommodation was not lawfully sub let and an application is made to the Rent Controlling Authority in this behalf, either by the landlord or by the sub tenant, within two months of the date of the receipt of the notice of sub letting by the landlord or the issue of the notice by the tenant or the sub tenant, as the case may be, the Rent Controlling Authority shall decide the dispute.
" This sub section empowers a Rent Controlling Authority to decide whether a sub letting was lawful where the landlord disputes that the subletting was lawful, on an application made to it by either party within the period mentioned.
When the Rent Controlling Authorities have the power to decide the lawfulness of the subletting, a civil court is plainly debarred from deciding that question by section 45(1).
In the present case the landlord did contend 131 that the sub letting was not lawful.
The appellants 's suit was filed within the period mentioned in sub section
(3) of section 15.
So the Rent Controlling Authorities had the power to decide the question on which the appellants ' suit depended.
It follows that the suit related to a matter which the Rent Controlling Authorities had power to decide and no civil court was, therefore, competent to entertain it.
Hence we think that the High Court was right in deciding that the suit had been filed in a court incompetent to entertain it, and in dismissing it.
It was said that a Rent Controlling Authority would have no power to decide a dispute as to whether a sub letting was lawful where the notice mentioned in section 15(2) had not been served, orafter the period mentioned in sub section
(3) of that section had expired if it had not been moved earlier.
Another question mooted was that the two months mentioned in sub section
(3) only provided a special period of limitation for the application mentioned in it and the provision of the period did not mean that a Rent Controlling Authority had power to decide the matter only if an application had been made within that period, so that if no such application had been made, after the expiry of the period a civil court would have jurisdiction to decide a dispute as to whether a sub letting was lawful.
The point is that the real effect of section 15(3) was to deprive the civil court of the jurisdiction to decide that dispute for all time.
We do not feel called upon to decide these questions.
They do not arise in the present case and it was not said that these questions affect the question of the competence of the civil court to try the present suit.
They clearly do not.
The suit was filed within the period of two months during which admittedly the Rent Controlling Authorities had jurisdiction to decide the dispute on which it was based.
Whatever may be the jurisdiction of a civil court on other facts, in the present case it clearly had no jurisdiction to entertain the appellants ' suit.
It was said on behalf of the appellants that section 15(3) had no application to the present case as the landlord had before the appellants ' suit was filed, obtained a decree against the tenant for eviction.
We are unable to accept this contention.
There is nothing in sub section
(3) of section 15 to indicate that it does not apply to a case where a landlord has obtained such a decree.
If in spite of the decree the appellants had a right under the Act to a direct tenancy under the landlord, they had a right to move the Rent Controlling Authority within the period mentioned (now expired) for a decision of the question that the sub letting to them 132 was lawful.
If the Rent Controlling Authority had the power to decide that question, a civil court would not be competent to decide the dispute in a suit brought within that period.
So the decree does not make a civil court, a court competent to entertain the suit.
It was also said that as the landlord had not applied under sub section
(3) of section 15 and this is not disputed by the landlord that provision is put out of the way and it must now be held that the appellants had become direct tenants under him.
The words of the sub section lend no support to this contention.
The appellants can claim the direct tenancy only when they establish that the sub letting to them was lawful.
As they claim that right, they must establish it and they do not do so by the failure of the landlord to move for a decision that the sub letting was not lawful.
This contention of the appellants seems to us to be untenable.
In any case it is difficult to appreciate how the failure of the landlord to apply under section 15(3) would affect the question of the competence of a civil court to entertain the appellants ' suit which had been filed before the time limited by the sub section for the landlord to apply to a Rent Controlling Authority had expired.
We now come to sub section
(2) of section 45 of the Act which is in these terms : S.45.
(1) (2)Nothing in sub section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any accommodation to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such accommodation.
It is said by the appellants that their suit raises a question of title to the tenanted premises within the meaning of that word as used in the subsection.
This contention does not seem to us to be well founded.
"Accommodation" has been defined in the Act as a building, garden, ground, out house, or garage appurtenant to it, its fixtures and furniture supplied for use there and also land not used for agricultural purpose.
The word, therefore, refers to property of certain varieties and in our opinion the words "title to any accommodation" in the sub section mean a right to or interest in property existing otherwise than under the Act and not those created by it.
It does not include a subtenant 's right created by the Act to be treated under certain cir 133.
cumstances as the direct tenant of the landlord.
This seems to, us to be clear from the whole scheme of the Act, which is to create certain rights and to leave them in certain cases to be decided by the Rent Controlling Authority established under it, quickly, inexpensively and summarily and with restricted rights of appeal from their decision.
The object of the Act as disclosed by its scheme would be defeated if civil courts were to adjudicate upon the rights which it was intended the Rent Controlling Authorities would decide, with all the consequent delay, expense and series of appeals.
Again if the civil courts had the power to decide such rights, section 15 (3) would be meaningless, for the decision of the dispute as to whether sub letting was lawful was necessary only for establishing a sub tenant 's right to a direct tenancy under the landlord under section 16 (2).
Sub section (2) of section 45 was clearly intended only to protect a right to resort to a civil court for the decision of a question as to an interest in property existing apart from the Act concerning which an adjudication may have been incidentally made by a Rent Controlling Authority in deciding a question which it had been expressly empowered by the Act to decide.
We, therefore, think that sub section
(2) of section 45 does not authorise a civil court to decide the dispute as to the lawfulness of the sub letting and does not therefore make it competent to entertain the appellants ' suit.
For these reasons, in our view, no civil court had jurisdiction to try the appellants ' suit and it was rightly dismissed as having been filed in an incompetent tribunal.
The result is that the appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
Respondent No. 1 who was the landlord of the accommodation in dispute obtained a decree of ejectment against respondent No. 2, his tenant.
The appellants who were sub tenants under respondent No. 2 gave a notice to the landlord under section 15(2) of the Madhya Pradesh Accommodation Control Order, 1961, and thereafter filed a suit against him claiming a declaration that being lawful sub tenants they had become direct tenants of the landlord under s, 16(2) of the Act.
The High Court held that the suit was barred by section 45(1) of the Act according to which no civil court could enter Lain any suit or proceeding in so far as it related to any matter which the Rent Controlling Authority under the Act was empowered to decide.
In appeal to the Supreme Court.
HELD : (1) For section 16(2) to come into operation the sub tenancy has to be lawful.
The question of lawfulness of a sub tenancy was one which under section 15(3), the Rent Controlling Authority was empowered to decide.
Under section 45(1) of the Act no civil court could entertain a suit or proceeding which the Rent Controlling Authority was empowered to decide. 'Me High Court was therefore right in holding that the suit had been filed in a court incompetent to try it and in dismissing it.
[13OH 131B] (ii)There is nothing in section 15(3) of the Act to indicate that it does not apply to a case where a, landlord has already obtained a decree against a tenant.
If in spite of the decree the appellants had a right under the Act to a direct tenancy under the landlord, they had a right to move the Rent Controlling Authority within the prescribed period for a decision of the question that the subletting to them was lawful.
If the Rent Controlling Authority had the power to decide that question, a civil court would not be competent to decide the dispute in a suit brought within that period.
The suit by the appellants had been filed within that period.
[131G 132B] (iii)The fact that the landlord had not applied under section 15(3) did not affect the issue as it was for the appellants as sub tenants to prove that the sub letting to them was lawful.
, [132C] (iv)Section 45(2) also did not help the appellants.
That provision was clearly intended only to protect a right to resort to a civil court for the decision of a question as to an interest in property existing apart from the Act concerning which an adjudication may have been incidentally made by a Rent Controlling Authority in deciding a question which it had been empowered by the Act to decide.
It does not authorise a civil court to decide a dispute as to the lawfulness of sub letting for the purpose of section 16(2).
[133 C E] 129


judgement:
Appeal No. 124 of 1963.
Appeal by special leave from the judgment and order dated January 22, 1962, of the Deputy Custodian General of India, New Delhi No. 472/R/UP/1961.
section section Shukla, for the appellant.
Gopal Singh and R. N. Sachthey, for the respondent.
From time to time execution applications were filed by the decree holder against the Zamindar, but nothing was recovered.
Rani Manraj Koer died on October 1, 1941 and the appellant was brought on the record as her heir and legal representative.
Nawab Mohammad Ali Khan Qazilbash also died and five persons amongst whom was one Nawab Ali Raza Khan were impleaded as legal representatives in the execution proceedings.
In January 1950 Nawab Ali Raza Khan (Talukdar of Aliabad Estate) who was substantially the only judgment debtor from whose estate the amounts due were liable to be recovered migrated to Pakistan and he was declared an evacuee under the provisions of the Administration of Evacuee Property Ordinance 27 of 1949 which was later replaced by the 31 of 1950.
The Custodian of Evacuee Property took possession of the estate of the evacuee and applied to the Civil Judge, Lucknow for removal of attachment levied on the estate by the Civil Judge, Bahraich in execution of the decrees at the instance of the appellant.
The Civil Judge, Lucknow, by order dated July 22, 1950 directed that the "transfer certificates" issued in the two decrees be recalled and the papers be consigned to the record.
Against the order passed by the Civil Judge, Lucknow appeals were preferred by the appellant to the High Court at Allahabad.
By order dated February 22, 1960 the High Court held that after the Custodian entered upon the management of the properties of the evacuee by virtue of section 17 of the Administration 306 of Evacuee Property Act, so long as the property remained vested in the Custodian under the provisions of that Act it was not liable to be proceeded against in any manner whatsoever in execution of any decree or order of any court or other authority.
On September 27, 1960 the appellant applied to the Custodian for an order under section 10(2) (n) of the , directing that his claim for Rs. 1,27,638/2/under the two decrees in suits Nos. 9 of 1932 and 42 of 1932 be satisfied out of the assets belonging to the estate of Nawab Ali Raza Khan.
The Assistant Custodian General, Evacuee Property, U.P. Lucknow, exercising the powers of the Custodian rejected the application holding that he had no power to grant relief to the appellant of the nature claimed.
In exercise of his revisional jurisdiction, the Custodian General Evacuee Property, New Delhi, confirmed the order, and the appellant has, with special leave, appealed against that order.
The question which falls to be determined in this appeal is, whether the Custodian is entitled to entertain the claim of the holder of a money decree against the evacuee for satisfaction of his dues out of the assets vested in the Custodian by section 7 of the .
The Custodian held that he had no such power, and the Custodian General agreed with him.
Section 10 of the Act deals with the powers and duties of the Custodian generally.
By sub section
(1) it is provided : "Subject to the provisions of any rules that may be made in this behalf, the Custodian may take such measures as he considers necessary or expedient for the purposes of securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him by or under this Act and may, for any such purpose as aforesaid, do all acts and incur all expenses necessary or incidental thereto." Sub section (2) provides : "Without prejudice to the generality of the provisions contained in sub section (1), the Custodian may, for any of the purposes aforesaid, (n)pay to the evacuee, or to any member of his family or to any other person as in the opinion of the Custodian is entitled thereto, any sums of money out of the funds in his possession." 307 By Subs.
(2) of section 10 specific powers and duties of the Custodian are set out.
It illustrates the general powers and duties under sub section
The argument that the expression "any other person" in cl.
(n) must be construed ejusdem generis with "evacuee" or ,.any member of his family" has, in our judgment, no force.
The rule of interpretation ejusdem generis applies where a general word follows particular and specific words of the same nature as it self : it has no application where there is no genus or category indicated by the Legislature.
The clause is intended to confer upon the Custodian power coupled with a duty to pay to the evacuee or to any member of his family or to any other person who in the opinion of the Custodian is entitled to any sum of money out of the estate of the evacuee.
The powers of the Custodian and the duties are undoubtedly to be exercised under sub section
(2) for the purposes mentioned in sub section
(1) i.e. for securing, administering, preserving and managing any evacuee property and generally for the purpose of enabling him satisfactorily to discharge any of the duties imposed on him.
To ascertain the limits upon and extent of those purposes, the position of the Custodian qua the estate of the evacuee vested in him must first be determined.
Section 7(1) allies the Custodian to declare after enquiry any property as evacuee property within the meaning of the Act, and the property so declared is deemed to vest in the Custodian from the date specified in section 8.
But the vesting of the property in the Custodian is for the purposes of the Act i.e. for administration and management.
By the vesting for purposes of the Act the Custodian does not become the owner of the property : he holds it for the evacuee and is bound to administer it in the manner provided by the Act.
The appropriation of the property must depend upon statutory provisions enacted by the Parliament.
By section 17(1) of the Act as amended by Act 22 of 1951 with retrospective operation it was provided that : "Save as otherwise provided in this Act no evacuee property which has vested or is deemed to have vested in the Custodian under the provisions of this Act shall, so long as it remains so vested, be liable to be proceeded against in any manner whatsoever in execution of any decree or order of any court or other authority, and any attachment or injunction or order for the appointment of a receiver in respect of any such property subsisting on the commencement of the Administration of Evacuee property (Amendment) Act, 1951, shall cease to have effect on such commencement and shall be deemed to be 308 The second part of the sub section deals with avoidance of attachment, or injunction or order for the appointment of a receiver in respect of any evacuee property subsisting on the date of the commencement of the Act of 1951, and the first part interdicts recourse to the evacuee property so long as it remains vested in the Custodian, by process of any court or authority for obtaining satisfaction of any claim against the property.
It is clear from the language of the, section that whether the claim be against the evacuee or it is against the Custodian arising out of any acts of administration done by him, the evacuee property cannot be attached in execution of any decree or order of any court or other authority.
The Legislature has thereby completely excluded the jurisdiction of courts and authorities to execute decrees or orders passed against the Custodian or the evacuee to proceed against the property vested in the Custodian.
The intention clearly is that the administration shall continue for the purposes of the Act without any interference by the process in execution of the decrees or orders of courts or other authorities.
But it does not appear to be the intention of the Legislature that the Custodian should be entitled to collect the property of the evacuee and not be under an obligation to satisfy his debts and obligations.
The argument of counsel for the Custodian that the Custodian is merely to manage the property and is not invested with power to pay the debts due by the evacuee or to discharge liabilities of the evacuee is not borne out by the terms and the scheme of section 10.
The powers conferred and the duties imposed by section 10(1) are for the purposes of securing, administering, preserving and managing the evacuee property, and there is no reason to attribute to the Legislature an attempt at tautology by assuming that "administering" is used in the same sense as the expression "managing".
Again sub section
(2) makes it abundantly clear that the powers conferred and the duties imposed are not merely incidental to management as a statutory agent of the evacuee.
For instance, upon the Custodian is conferred the power to carry on the business of the evacuee with all the discretion which the carrying on of the business of the evacuee may necessitate : he is entitled to complete buildings which are required to be completed, to keep evacuee property in good repair, and to take action as may be necessary for the recovery of any debt due to the evacuee : see cls.
(d), (e) and (i) of sub section
(2) of section 10.
Power is also conferred upon the Custodian by cl.
(j) to institute, defend or continue any legal proceeding in any civil or revenue court on behalf of the evacuee : he is given the power to refer disputes between the evacuee and any other person to arbitration or to compromise any claims, debts or liabilities on 309 behalf of the evacuee.
Clause (j) implies the power and its concomitant duty to satisfy the claim which may be determined in any legal proceeding instituted, defended or continued in any civil or revenue court, or awarded against the evacuee, or admitted or undertaken by virtue of the compromise.
The argument of the Custodian, if accepted, would lead to the somewhat startling result that a decree or an award made in favour of the evacuee in a proceeding commenced or continued by or against the Custodian may be enforced by the Custodian, but the property of the evacuee remains free from all claims, obligations and liabilities of the evacuee, even if decreed by a competent court or undertaken and accepted by him.
There is nothing in the statute which compels us to lend countenance to this inequity.
The words used in cl.
(n) empowering the Custodian to pay to "any other person" any sums of money out of the funds in his possession are not restricted to persons who are members of the family of the evacuee; they include other persons as well who are entitled to receive money from the evacuee.
The decree of a civil or revenue court or an order of any other authority is, it must be observed, not decisive of the validity or admissibility of the claim against the evacuee property.
It is for the Custodian to be satisfied about the genuineness of the claim.
The Custodian must determine whether a person making a claim against the evacuee is entitled to the right claimed, and if he is satisfied, the claim may be discharged out of the funds in his posession .
But by the use of the expression "in the opinion of the Custodian" it was not intended to invest the Custodian with arbitrary authority.
It is for the Custodian to determine when a claim is made by the evacuee, or a member of his family or any other person for payment of a sum of money, having regard to all the circumstances, whether it is genuine and to satisfy it if in the opinion of the Custodian such a person is entitled to the payment.
Where a claim is made by a person who claims to be a creditor of the evacuee and he satisfies the Custodian that he is entitled to any sum of money, then normally the Custodian would be justified in discharging the obligations of the evacuee out of the funds in his possession.
But counsel for the Custodian relies upon the terms of 3. 10 (2) (m) as they originally stood before they were amended by Act 91 of 1956 and the deletion of Rule 22 framed under the Act, in support of the contention that the Parliament has deliberately taken away the power to entertain a claim for satisfaction of debts due by the evacuee.
Section 10 (2) (m), as it originally stood, provided: 310 .lm15 "incur any expenditure, including the payment of taxes, duties, cesses and rates to Government or to any local authority; or of any amounts due to any employee of the evacuee or of any debt due by the evacuee to any person." Under Rule 22 made in exercise of the powers under section 56 of the Act, provision was made for registration of claims by persons claiming to receive payment from any evacuee or from any property of such evacuee, whether in re payment of any loan advanced or otherwise, by presenting a petition to the Custodian.
Tim Custodian was entitled to register a claim under cl.
(2) where in was supported by a decree of a competent court or a registered deed executed and registered before 14 8 1947 or by a registered deed executed and registered on or after 14 8 1947, and the transaction in respect of which the deed was so executed and registered had been confirmed by the Custodian, or where an acknowledgment in writing was executed by the evacuee himself before the 1st March 1947 or where such claim was of the nature referred to in the Explanation to sub rule (1) and the transfer of property in respect of which the claim was made was a bona fide transaction.
If the claim did not fall under sub rule (2) the Custodian had to direct the claimant to establish his claim in a civil court Sub rules (3) & (4) provided : "(3) The mere registration of a claim shall not entitle the claimant to payment and the Custodian may for reasons to be recorded refuse payment.
(4)No debt incurred by the evacuee before the property vested in the Custodian shall be paid without the sanction of the Central Government or Custodian General.
" The Explanation to sub rule (4) set out cases in which the sanction of the Central Government was not necessary.
The was amend ed by Act 91 of 1956 and the words "or of any amounts duly to any employee of the evacuee or of any debt due by the evacue to any person" in section 10(2) (m) were deleted.
The Central Government thereafter issued on February 20, 1957 an order deleting Rule 22.
Relying upon this legislative development, it was con tended, that an express power to entertain a claim for satisfaction of debts due by the evacuee was conferred upon the Custodian by section 10(2) (m) and machinery was provided for effectuating the 311 exercise of that power in Rule 22, and the Legislature having deleted the clause which authorised the Custodian to exercise the power to pay debts and the machinery in that behalf, no such power remained vested in the Custodian.
We are, however, unable to agree that because of the amend ment made in section 10(2) (m) and the deletion of Rule 22 the power which is vested in the Custodian under section 10(2) (n) must be held restricted.
Sub section (1) of section 10 sets out the powers of the Custodian generally, and the diverse clauses in sub section
(2) illustrate the specific purposes for which the powers may be exercised, and there is no reason to think that the clauses in sub section
(2) are mutually exclusive.
If power to pay the debts was derived both under cls.
(m) & (n) as it appears it was, deletion of the provision which authorised the Custodian to pay debts due by the evacuee to any person from cl.
(m) and of Rule 22 setting up the machi nery for registration of debts did not, in our judgment, affect the power which is conferred by cl.
(n) by sub section
(2) and also by section 10(1).
In our judgment, the power to administer is not merely a power to manage on behalf of the evacuee so as to authorise the Custodian merely to recover and collect the assets of the evacuee, but to discharge his obligations as well.
The power to administer for purposes mentioned, having regard to the diverse clauses in sub section
(2), includes the power to pay such debts which in the opinion of the Custodian are binding upon the evacuee.
Specific enunciation of that power in cl.
(n) authorising the Custodian to pay to any other person who in the opinion of the Custodian is entitled to any sum of money supports that conclusion.
As already observed, the decree of the civil court is not decisive of the question whether a person making a claim is entitled to the sum of money claimed by him.
It is for the Custodian to determine whet her the claimant is entitled to receive the sum of money claimed by him out of the funds in his possession.
He has to form his "opinion" on this question : of course, in forming his opinion he must act judicially and not arbitrarily.
As the Tribunals below have determined the claim raised before them only on the question of jurisdiction to entertain it and not on the merits, we are unable to pass any effective order in favour of the appellant.
The orders passed by the Custodian and the Cus todian General must therefore be set aside and the proceeding remanded to the Custodian to determine the question whether in the opinion of the Custodian the appellant is entitled to any sum of money out of the funds in his possession and whether for the purpose of administration and management of the evacuee property 312 or for enabling him to satisfactorily discharge his duties under the Act the amount claimed should be paid.
The appeal is therefore allowed.
The appellant would be entitled to his costs in this appeal from the Custodian.
Appeal allowed.

summary/full:
The appellant was the holder of a money decree against an evacuee whose property had vested in the Custodian.
Under section 17 of the , the property was not liable to be proceeded against in execution so long as it remained vested in the Custodian, and the appellant could not take steps to execute the decree.
He therefore applied to the Custodian under section 10(2)(n) of the Act, for satisfaction of his claim out of the assets of the evacuee.
The application was rejected on the ground that the Custodian had no power to grant the relief and the order was confirmed by the Custodian General, in revision.
In his appeal to this Court the appellant contended that the Custodian should have entertained his claim.
HELD : The orders passed by the Custodian and the Custodian General must be set aside and the proceeding remanded to the Custodian to determine the questions, whether in the opinion of the Custodian, the appellant was entitled to any sum of money out of the funds in the Custodian 's ion and whether, for the purpose of administration and management of the evacuee property or for enabling him satisfactorily to dis charge his duties under the Act the Custodian should pay the amount claimed.
[311 H; 312 A] Section 10(1) of the Act, sets out the powers of the Custodian generally, and the diverse clauses of section 10(2) illustrate the specific purposes for which the powers may be exercised, These clauses are not mutually exclusive.
Under cl.
(in), before its amendment by Act 91 of 1956, express power to entertain a claim for satisfaction of debts due by the evacuee was conferred upon the Custodian.
Clause (n) confers upon the Custodian power, coupled with a duty, to pay to the evacuee or to any member of his family or to any other person, who in the opinion of the Custodian is entitled, any sum of money out of the estate of the evacuee. 'Me words "any other person" are not restricted to persons who are members of the evacuee 's family, but include other persons as well who are entitled to receive money from the evacuee.
Thus, the power to pay the evacuee 's debts was derived both under cls.
(in) and (n) of section 10(2) Therefore, the deletion from cl.
(in) of the Custodian 's power to pay the debts, by the Amending Act of 1956, and the consequential deletion of r. 22 of the rules framed under the Act, by which a machinery was provided for exercising that power, did not affect the power which is conferred by section 10(2)(n) and by section 10(1).
The power to administer, under section 10(1), is not merely a power to manage on behalf of the evacuee so as to authorise the Custodian only to recover and collect the assets of the evacuee; it includes power to discharge his obligations as well, to pay such debts which, in the opinion of the Custodian, are binding upon the evacuee.
[307 C; 309 C D; 311 C E] 305 A decree of the civil court is not decisive of the question whether a Person making a claim is entitled to the money claimed by him; it is for the Custodian to determine whether he is so entitled.
The Custodian has to form his "opinion" on this question, and in forming his opinion, he must act judicially and not arbitrably.
[311 F G]


judgement:
Appeal No. 180 of 1963.
Appeal by special leave from the judgment and decree dated February 19, 1958 of the Patna High Court in Appeal from Appellate Decree No. 919 of 1954.
Sarjoo Prasad and B. P. tha, for the appellants, 159 A. V. Viswanatha Sastri, B. K. P. Sinha and A. G. Ratna parkhi, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
The plaintiffs appellants instituted Title Suit No. 91 of 1950, out of which this appeal arises, for redemption of two usufructuary mortgages created by plaintiff No. 1 and ancestors of plaintiffs Nos. 2 to 6 dated July 5, 1927 and April 15, 1928 in favour of the defendant for Rs. 1,000 and Rs. 1,300 respectively.
The mortgage dated July 5, 1927 was in respect of 7.20 acres of occupancy raiyati lands, consisting of four plots Nos.
149, 155, 955 and 957, in village Hichapur under the Tikari Raj.
The mortgaged lands were part of a larger holding of 23.69 acres under khata No. 59, and the annual rent of the entire holding was Rs. 153 3 0.
The mortgage deed provided that the mortgagee would pay Rs. 33 14 9 out of the total rent payable to the landlord and the mortgagors would pay the balance rent.
There was default in payment of rent for several years.
The landlord obtained a, decree for arrears of rent, and at the rent sale held on June 18, 1934, the mortgagee defendant purchased the Hichapur lands in the farzi name of Dwarkalal.
The mortgage dated April 15, 1928 was in respect of 7.20 acres of lands in village Utrain tinder kahas mahal.
The mortgaged lands were part of a larger holding of 1988 1/2 acres in khata No. 269.
The, rent of the entire holding was Rs. 155 4 0.
The mortgage deed provided that the mortgagee would pay Rs. 68 10 9 out of the total rent and the balance rent would be payable by the mortgagors.
There was default in payment of rent for several years.
Certificate proceedings were started for the recovery of the arrears of rent, and at a certificate sale held on January 22, 1934, the Utrain lands were purchased by the defendant in the farzi name of Deonarain.
It appears that out of the sum of Rs. 33 14 9 pay able by the mortgagee annually on account of the rent of the Hichapur lands, the mortgagee consistently paid Rs. 33 annually, but did not pay the balance sum of 14 annas 9 pies, whereas the mortgagors consistently defaulted in payment of the sum of Rs. 119 4 3 payable by them annually on account of the total rent.
It also appears that out of the sum of Rs. 68 10 9 payable by the mortgagee annually on account of the rent of the Utrain lands, the mortgagee consistently paid Rs. 68 annually but did not pay the balance sum of 10 annas 9 pies, whereas the mortgagors consistently defaulted 160 in payment of the sum of Rs. 86 9 3 payable by them annually on account of the total rent.
The trial Court decreed the suit.
The first appellate Court allowed the appeal in part, passed a decree for redemption of 3.93 acres of plot No. 955 only on the ground that this portion of the land was not sold at the rent sale and gave leave to the defendant to withdraw Rs. 1,000 deposited by the plaintiff in respect of the mortgage dated July 5, 1927.
The High Court dismissed a second appeal preferred by the plaintiffs.
The plaintiffs now appeal to this Court by special leave.
The plaintiffs contend that the purchases at the rent sale and the certificate sale were made by the mortgagee by availing himself of his position as such and having regard to section 90 of the and Illustration (c) to it, the purchases enured for the benefit of the plaintiffs and they are entitled to redeem the entire mortgaged lands.
The defendant mortgagee disputes this contention, and claims that the aforesaid sales extinguished the equity of redemption.
Section 90 of the and Illustration (c) to it are as follows : "Where a tenant for life, co owner mortgagee or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.
(c) A mortgages land to B, who enters into possession.
B allows the Government revenue to fall into arrears with a view to the land being put up for sale and his becoming himself the purchaser of it.
The land is accordingly sold to B. Subject to the repayment of the amount due on the mortgage and of his expenses properly incurred as mortgagee, B holds the land for the benefit of A." 161 In Basmat Devi vs Chamru Sao(1), a part of one entire hold ing was mortgaged, both the mortgagor and the mortgagee were liable to pay the rent of the holding, both of them defaulted in payment of the rent, the default of both contributed to the passing of a rent decree and the sale of the holding in execution of, the decree, the default of the mortgagee being substantial, and the mortgagee purchased the holding at the execution sale.
On these facts, this Court held that the mortgagee clearly gained an advantage by availing himself of his position as such, and having regard to section 90 of the his purchase must inure for the benefit of the mortgagor, and the mortgagor was entitled to redeem the mortcaged property.
In that case, Das Gupta, J. observed "Whether this would be true even where the portion which the mortgagee is liable to pay is so very small that the property is not ordinarily likely to be brought to sale for that amount, it is unnecessary for us to decide in the present case.
" The question left open by Das Gupta, J. arises for decision in the present case.
This is a case where the mortgaged property is part of a larger holding, the mortgagee agreed to pay a portion of the rent of the entire holding, and the mortgagors agreed to pay the balance rent payable in respect of it.
The mortgagors defaulted in payment of the rent payable by them.
The mortgagee paid almost the entire amount of the rent payable by him but defaulted in payment of a trifling sum.
The portion of the rent which the mortgagee failed to pay is so small that it is impossible to say that the property was brought to sale for it or that his default was in any real sense a contributory cause of the sale of the property.
it is not shown that non payment of the trifling sums by the mortgagee was made mala fide or with the ulterior object of the property being put up for sale and his becoming the purchaser of it.
The mortgagee did not gain any advantage by availing himself of his position as such or of a situation brought about by his own default.
The real effective cause of the sale was the default of the mortgagors alone.
In the circumstances, section 90 of the and Illustration (c) to it are not attracted, and the purchase by the mortgagee does not inure for the benefit of the mortgagors.
The rent sale and the certificate sale extinguished the right of redemption.
Consequently, the suit by the mortgagors for redemption of the mortgaged property is liable to be dismissed.
The first appellate Court, however, gave a decree for redemption of 3.93 acres of plot No. 955 in Hichapur village and gave (1) ; 162 liberty to the mortgagee to withdraw the entire sum of Rs. 1,000 deposited by the plaintiffs in respect of the mortgage of the Hichapur lands.
Before the High Court the plaintiffs contended, relying upon the last paragraph of section 60 of the , that they were entitled to redeem the aforesaid 3.93 acres of Utrain lands on payment of the proportionate amount of the mortgage money payable under the mortgage dated July 5, 1927.
The High Court negatived this contention.
The Courts below observed that 3.93 acres of plot No. 955 of the Hichapur lands were not sold at all at the sale held on June 18, 1934, but quite inconsistently, the Courts below also observed that the aforesaid sale held on June 18, 1934 was a rent sale and was made in execution of a rent decree.
Learned counsel on behalf of both parties conceded before us that there could be no rent sale in respect of a portion of the holding.
It may be that there was a rent sale, and by mistake, the sale certificate omitted to mention the 3.93 acres of plot No. 955.
The relevant documents are not printed in the paper book.
Having regard to the value of the subject matter in dispute, it is not worthwhile to call for a fresh finding on this point.
We, therefore, indicated to counsel on both sides in course of the argument that we shall decide this appeal on the footing that the sale held on June 18, 1934 was a rent sale and the entire Utrain lands were purchased by the defendant at the rent sale.
On this footing the last paragraph of section 60 of the can have no application.
The plaintiffs appellants do not now own the equity of redemption in any portion of the Hichapur lands.
The Courts below, therefore, should have dismissed the entire suit for redemption, and the question of redemption of a portion of the property on payment of a proportionate amount of the mortgage money does not properly arise in this case.
However, the first appellate Court gave a decree for redemption of the aforesaid 3.93 acres of land.
The High Court affirmed this decree, and there is no cross appeal by the defendant respondent.
In the circumstances, the decree passed by the Court below must be maintained.
In the result, the appeal is dismissed with costs.
Appeal dismissed.

summary/full:
The ancestors of the appellants created usufructuary mortgages in favour of the respondent.
The mortgaged property was a part of a larger holding.
The mortgagee respondent had agreed to pay a portion of the rent of the entire holding and the mortgagors agreed to pay The balance rent payable in respect of it.
The mortgagors defaulted for several years in payment of the rent.
The mortgagee paid almost the entire amount of the rent but defaulted in the payment of a trifling sum.
The landlord obtained a decree for arrears of rent, and at rent sales the mortgagee pur chased the lands.
The appellant s mortgagors filed a suit for redemption of the mortgage, which was decreed by the trial court.
The mortgagee appealed, which was allowed in part passing a decree for redemption of a small plot only on the ground that this portion of land was not sold at the rent sale.
The mortgagors ' appeal to the High Court was dismissed.
In appeal by special leave, the mortgagors contended that the purchases at the rent sale and the certificate sale were made by the mortgagee by availing himself of his position as such as having regard to section 90 of the and Illustration (c) to it.
the purchases enured for the benefit of the mortgaors and they were entitled to redeem the entire mortgaged lands.
HELD : The portion of the rent which the mortgagee failed to pay was so small that it was impossible to say that the property was brought to sale for it or that his default was in any real sense a contributory cause of the site of the property.
It was not shown that non payment of the titling sum by the mortgagee was made mala fide or with the ulterior object of the property being put up for sale and his becoming the purchaser of it.
The mortgagee did not gain any advantage by availing himself of his position as such or of a situation brought about by his default.
The real effective cause of the sale was the default of the mortgagor& alone.
L161 E G] In the circumstances, section 90 of the and Illustration (c) to it were not attracted, and the purchase by the mortgagee did not enure for the benefit of the mortgagors.
The rent sale and the certificate sale extinguished the right of redemption.
[161 G H] Basmat Devi vs Chamru Sao, ; , referred to.


judgement:
iminal Appeal No. 26 of 1965.
Appeal by special leave from the judgment and order dated August 10, 1964 of the Patna High Court in Criminal Appeal No. 66 of 1962.
R.K. Garg, section C. Agarwala and D. P. Singh, for the appel lants.
D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, J.
B in order pronounced on May 7, 1965, we ordered the dismissal of this appeal but reserved our reasons which we now proceed to give.
The five appellants were tried on a complaint by the respon dent Janardan Prasad before the Honorary Magistrate.
First Class, Jehanabad for offences under sections 420, 468, 406, 465/471, Indian Penal Code.
They were acquitted on August 31, 1962.
The complainant obtained special leave of the High Court at Patna under section 417(3) of the Code of Criminal Procedure and filed an appeal against their acquittal.
The High Court set aside the acquittal and remanded the case to the District Magistrate of Gaya with a direction that the case be inquired into under Chapter XVIII of the Code from the stage of taking evidence under section 208, with a view to their committal to the Court of Session.
The appellants now appeal by special leave against the judgment and order of the High Court.
The facts of the prosecution case may now be stated briefly.
Janardban Prasad and his brother Jangal Prasad were separate, having, prior to the present occurrence, partitioned their lands by metes and bounds.
Plots Nos.
1810 and 1811 in village Kalpa Kalan fell to the share of Jangal and plot No. 1699 in the same village fell to the share of Janardan.
Jangal Prasad 's plots lie close to the dalan of Matukdhari and his brothers Rameshwar Singh and Dhanukdhari Singh (the first three appellants) and they coveted them.
Janardhan alleged that they forged a sale deed in respect of half the area of those two plots and presented the documents for registration.
Janardhan was aggrieved but on the intercession of Deoki Lal and Chhedi Lal (appellants 4 and 5) 257 the dispute was compromised and it was agreed that Janardhan would execute a sale deed for plot No. 1699 and half of another plot No. 1491 while Matukdhari and his brother Dhanukdhari Singh agreed to sell in return O.10 acre in one of their plots (No. 1797) to him.
The complainant executed two sale deeds in respect of the two said plots and Dhanukdhari Singh executed a sale deed in respect of plot No. 1797 as it was in his name.
The latter sale deed was taken in favour of Janardhan 's son.
All documents were scribed by Deokilal with the help of Chhedi Lal and were presented for registration.
The receipts obtained from the Registration Office were left with Deokilal till the result of the first registration case (which was fixed for February 8, 1960) was known.
When Janardhan asked for the receipts he was put off.
He found later that the two documents had already been withdrawn by forging his signature.
Matukdhari had withdrawn the deed executed by Janardhan and Dhanukdhari the sale dead executed by himself.
The complainant was assured by Deokilal and Chhedilal that the deed executed in favour of his son would be returned by Rameshwar Singh with whom, it was said to be lying, but Rameshwar Singh refused to do so.
The complaint was, therefore, filed.
The Sub Divisional Officer, Jehanabad took cognizance under sections 468, 406 and 420, Indian Penal Code and sent the case to the Hony.
Magistrate for disposal.
The Hony.
Magistrate drew up charges against all the accused under section 420, Indian Penal Code.
In addition, Chhedilal and Deokilal were charged under section 468, Indian Penal Code and section 406, Indian Penal Code respectively.
Matukdhari was charged under sections 465/471, Indian Penal Code.
These charges could be tried by the Honorary Magistrate.
No charge under section 467, Indian Penal Code was framed against any of the appellants.
If it had been framed the case had to be committed to the Court of Session.
On March 29, 1962 the complainant, by a written application, asked that action under Chapter XVIII of the Code be taken but the Magistrate declined to commit the accused.
Another application dated June 28, 1962, for the same purpose was also rejected.
The learned Magistrate held that the evidence of entrustment of the receipts from the office of the Registrar was not satisfactory and Deokilal could not be convicted under section 406, Indian Penal Code.
He further held, mainly on the ground that no handwriting expert was examined, that it was not possible to say that there was forgery of the signatures or that Matukdhari had used the receipts knowing them to, be forged.
On these findings the appellants were acquitted.
258 In his appeal before the High Court the complainant con tended that the trial before the Magistrate was without jurisdiction as the Magistrate should have acted under Chapter XVIII with a view to committing the accused to the Court of Session for trial as the facts disclosed an offence under section 467, Indian Penal Code, which is triable exclusively by the Court of Session.
He contended that the offence was made out on his evidence and as registration receipts were valuable securities under section 30 of the Indian Penal Code a charge under section 467, Indian Penal Code should have been framed.
This argument found favour with the High Court and it was held that although section 467, Indian Penal Code was not mentioned in the complaint, a charge under that section ought to have been framed.
The High Court pointed out that it was the duty of the Magistrate to apply the correct law and if the facts disclosed an offence exclusively triable by the Court of Session he ought to have framed that charge and not assumed jurisdiction over the case by omitting it.
In the opinion of the High Court a prima facie case existed for framing a charge under section 467, Indian Penal Code, which meant that the case ought to have been committed to the Court of Session.
The acquittal was, accordingly, set aside and retrial ordered.
In this appeal the judgment is assailed as erroneous and against the principles laid down by this Court for dealing with appeals against acquittals.
Mr. Garg relies strongly upon two cases of this Court.
They are Abinash Chandra Bose vs Bimal Krishna Sen and Anr.(1) and Ukha Kolhe vs State of Maharashtra(1).
He contends that the trial before the Magistrate, in so far as it went, was with jurisdiction and it could not be set aside merely because the High Court thought that a charge under section 467, Indian Penal Code might have been framed.
He contends that such a proceeding is not contemplated under section 423(1)(a).
Criminal Procedure Code as explained by this Court in the two cases cited above.
He further refers to Barhamdeo Rai and others vs King Emperor(3), Balgobind Thakur and others vs King Emperor (4 ) and K. E. V. Razya Bhagawanta(5) as instances where, the trial being with jurisdiction, no retrial was ordered even though it was submitted to the High Court that some other offences triable exclusively by the Court of Session with which accused could be charged, were also disclosed.
These cases need not detain us.
They do not deny the power of the High Court to order a retrial.
The High Courts in those cases (1) ; (2) ; (3) A.I.R. 1926 Pat.
(4) A.I.R. 1926 Pat. 393.
(5) 259 did not order a retrial because the accused were convicted of lesser offences and the sentences imposed were considered adequate in all the circumstances of those cases.
The two cases of this Court were considered by us in Rajeshwair Prasad Misra vs State of West Bengal(1).
We have pointed out there that a retrial may be ordered for a variety of reasons which it is hardly necessary or desirable to state in a set formula and the observations of this Court are illustrative but not exhaustive.
The Code gives a wide discretion and deliberately does not specify the circumstances for the exercise of the discretion because the facts of cases that come before the courts are extremely dissimilar.
We pointed out that it would not be right to read the observations of this Court (intended to illustrate the meaning of the Code) as indicating in advance the rigid limits of a discretion which the Code obviously intended should be developed in answer to problems as they arise.
We gave some illustrations of our own which fell outside those observations but which might furnish grounds, in suitable cases, for an order of retrial.
This case also furnishes an example which may be added to that list.
The High Court pointed out that there was evidence that the endorsements on the receipts were not made by Janardhan.
Janardhan denied on oath that he had written them and stated that they were written by one of the respondents, with whose handwriting he claimed to be familiar.
There was prima facie evidence to show that the two deeds which were presented for registration were taken out on the strength of forged receipts.
No suggestion was made to Janardhan in cross examination that he had endorsed the receipts in favour of Matukdhari or Dhanukdhari.
If he had not written the endorsements, some one else must have done so.
No doubt handwriting experts could have been examined.
The Magistrate could have taken action under section 73 of the Indian Evidence Act but this was not done.
If the Magistrate had applied his mind to the problem he would have seen easily that a prima facie case of forgery was made out.
He should then have considered whether the receipts were valuable security or not.
If he had done that he would have seen that the main offence would prima facie be one under section 467, Indian Penal Code read with section 471 and the other offences were subsidiary.
It was thus not proper for him to choose for trial only such offences over which he had jurisdiction and to ignore other offences over which he had none.
His duty clearly was to frame a charge under section 467, Indian Penal Code (1)[1966] 1 S.C.R. 178. 260 and to commit the appellants to stand their trial before the Court of Session.
It was open to the High Court, while hearing an appeal under section 417(3) of the Code to direct the Magistrate to frame a charge for an offence which was prima facie established by the evidence for the prosecution and also to order that the accused be committed to the Court of Session.
It is wrong to contend that the High Court had no jurisdiction in the matter because the trial before the Honorary Magistrate (in so far as it went) was with jurisdiction.
If it were so there would be no remedy whenever a Magistrate dropped serious charges ousting him of his jurisdiction and tried only those within his jurisdiction.
The High Court followed a case of the Sind Chief Court reported in Dr. Sanmukh Singh Teja Singh Yogi vs Emperor(1) where retrial was ordered in very similar circumstances.
We were referred to that ruling and on reading it we do not think the High Court was wrong in accepting it as a correct precedent.
For, however hesitant the High Court may be to set aside an order of acquittal and to order retrial, it has jurisdiction under the Code to do so, if the justice of the case clearly demands it and a case of omission from the charge of a serious offence prima facie disclosed by evidence, is one of those circumstances in which the power can properly be exercised particularly when the charge for the offence, if framed, would have ousted the court of trial of its own jurisdiction.
Mr. Garg submitted finally that acquittals are not set aside in other jurisdictions and cited the example of English Criminal Law.
He submitted further that the setting aside of an acquittal with a view to holding a second trial robs the accused "of the reinforcement of the presumption of innocence which is the result of the acquittal".
As to the first submission it is sufficient to say that in our criminal jurisdiction a retrial is possible and we need not be guided by other jurisdictions.
No doubt the High Court must act with great care and caution and use the power sparingly and only in cases requiring interference.
As to the second it is not necessary to consider how the presumption of innocence is reinforced by an acquittal and to what extent.
The phrase in any event is hardly apt to describe a case where the accused is acquitted perversely, or without jurisdiction.
All that can be said is that these appellants were presumed to be innocent at their first trial (1) 261 and will not be thought less so at their second trial till their guilt is established legally and beyond all reasonable doubt.
In our judgment the High Court acted within its jurisdiction when it set aside the acquittal of the appellants and made an order for their retrial in the terms it did.

summary/full:
The appellants were tried on a complaint by the respondent before an Honorary Magistrate for offences under sections 420, 468, 406 and 465/471 Indian Penal Code and acquitted.
The Magistrate rejected the complainant 's request to frame a charge under section 467 Indian Penal Code, and commmit the accused to the Court of Sessions.
The complainant appealed to the High Court against the acquittal.
The High Court held that the evidence prima facie disclosed an offence under section 467 and even though the complaint did not mention that section it was the duty of the Magistrate to commit the case to sessions.
It accordingly set aside the acquittal, and ordered a retrial.
The appellants came to this Court by special leave.
It was contended on behalf of the appellants that the trial before the Magistrate, in so far as it went, was with jurisdiction and it could not be set aside merely because the High Court thought that a charge under section 467 might be framed, and that such a proceeding is not contemplated.
by section 423(1) of the Code of Criminal Procedure.
HELD: (i) If the Magistrate had applied his mind to the relevant evidence he would have seen that the main offence was under section 467 read with section 471and the other offences were subsidiary.
It was thus not proper for him tochoose for trial only such offences over which he had jurisdiction andto ignore the other offence over which he had none.
His duty clearly wasto frame a charge under section 467 and to commit the appellants to stand their trial before the Court of Sessions.
[259 G] (ii)It is wrong to contend that the High Court had no jurisdiction in the matter because the trial before the Honorary Magistrate (in so far as it went) was with jurisdiction.
If it were so there would be no remedy whenever a Magistrate dropped serious charges ousting him of his jurisdiction and tried only those within his jurisdiction.
[260 B C] Dr. Sanmukh Singh Teja Singh Yogi vs Emperor, , approved.
However hesitant the High Court may be to set aside an order of acquittal and to order retrial, it has jurisdiction under the code to do so if the justice of the case clearly demands it and a case of omission from the charge of a serious offence prima facie disclosed by the evidence, is one of those circumstances in which the power can properly be exercised particularly when the charge for the offence it framed would have ousted the jurisdiction of the trial court.
[260 D E] Abinash Chandra Bose vs Bimal Krishna Sen, A.I.R. 1963 S.C. 316, Ukha Kolhe vs State of Maharashtra, A.I.R. 1963 S.C. 1531, Barhamdeo 256 Rai and others vs King Emperor, A.I.R. 1926 Pat.
36 Balgobind Thakur and others vs King Emperor, A.I.R. 1926 Pat 393 and K.E.V. Razya Bhagwanta, , referred to.


judgement:
Appeal No. 167 of 1964.
Appeal by special leave from the judgment and decree dated April 11, 1962 of the Orissa High Court in First Appeal No. 61 of 1959.
A. V. Viswanatha Sastri and T. V. R. Tatachari, for the, appellant.
A. N. Sinha and B. P. Jha, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by Raghubar Dayal, J.
This appeal, by special leave, is against the decree of the High Court of Orissa reversing the decree of 346 the Court of the Subordinate Judge, Berhampur and dismissing the plaintiff 's suit for recovery of Rs. 8,216 due on a promissory note executed by Kontaru Naiko, defendant No. 1 for Rs. 6,000.
The plaintiff money lender obtained a registration certificate under section 5(4) and r. 5, of the Orissa Money Lenders Act, 1939 (Act III of 1939), hereinafter called the Act, and the rules thereunder, on March 31, 1952.
He obtained another registration certificate in 1955 which said that the maximum capital for which the certificate is granted is Rs. 8,000.
The plaintiff advanced the loan to defendant No. 1 on May 19, 1954 and sued for the recovery of the amount due on this loan.
It was contended for the defendant that the suit was not maintainable as the maximum capital for which the plaintiff had required the registration certificate in 1952 was Rs. 2,000 and under the provisions of the Act.
and the rules framed thereunder, he could not have advanced loan in excess of that amount and that his doing so made the registration of the appellant as a money lender void and therefore the suit for recovery of Rs. 2,000 even was not maintainable.
These contentions were not accepted by the trial Court which decreed the suit against the defendants with 'the direction that defendants Nos. 2 and 3 sons of defendant No. 1, were not personally liable and were liable to the extent of the assets of their father in their hands.
The High Court, however, took a different view, accepted the aforesaid contentions of the defendants and dismissed the suit.
The sole contention for the appellant is that the High Court was in error in holding that the registration of the appellant as a registered money lender in March 1952 became void when he advanced a loan in suit in excess of Rs. 2,000 in 1954 and that the High Court was also in error in holding that he could not have advanced the loan in excess of the maximum capital for which the registration certificate was wanted.
The relevant provisions of the Act may now be set out. 'Capital ', is defined in section 2(c), to mean that which a moneylender invests in the business of money lending whether in money or in kind. 'Registered money lender ', according to section 2(m), means a person to whom a registration certificate has been granted under section section Section 5 provides for the registration of moneylenders and a registration fee.
Sub section
(1) thereof requires the applicant for registration to mention in the application particulars mentioned in ' that sub section and 'such other particulars as may be Sub section
(3) empowers the Provincial Government 3 47 to prescribe by rules for different classes of money lenders and for different areas a registration fee not exceeding Rs. 25 to be paid by an applicant for registration.
Sub section
(4) empowers the Sub Registrar to grant a registration in the prescribed form to the applicant except where the certificate previously granted to him has beencancelled under section 18 and the order of cancellation is in force.
Section 6 enacts that the registration certificate granted willbe in force for 5 years from the date on which it is granted.
Section 7 provides for the registered money lender to maintain accounts and to give receipts.
Section 8 which provides for suits for recovery of loans by registered money lenders reads : "Suit for recovery of loan maintainable by registered money lenders only: A money lender shall not be entitled to institute a suit for the recovery of a loan advanced by him after the date on which this section comes into force unless he was registered under this Act at the time when such loan was advanced : Provided that a money lender shall be entitled to institute a suit to recover a loan advanced by him at any time in the course of two years after the date on which the section comes into force, if he is granted a certificate of registration under section 5 at any time before the expiration of the said years.
" Section 9 provides for the maximum rates at which interest may be decreed.
Various other sections deal with other matters which the legislature thought fit to provide for in order to achieve the object of the Act which, according to the preamble, is to regulate money lending transactions and to grant relief to debtors in the State of Orissa.
Rule 1, clause (c), of the Orissa Money Lenders Rules, 1939, defines 'maximum capital ' to mean the highest total amount of the capital sums which may remain invested in a money lending business on any day during the period of the registration certificate.
Rule 3, cl.
(iii), requires every application for the registration of a money lender to mention the maximum capital for which the certificate is wanted.
Rule, 4 lays down the registration fees payable and fixes the fees according to the maximum capital in respect of which an application for such certificate is made.
Rule 5 provides that registration certificate would be in Form in and that during the currency of a registration certificate application may be made for a registration certificate of a higher 348 denomination and the provisions of rr.
3 to 5 shall, as far as may be, apply to it, credit being given to the registration fee already paid by the applicant.
The question for decision in this case is practically the same as came up for decision before this Court in Sant Saranlal vs Parsuram Sahu(1) judgment.
in which has been delivered today.
The relevant provisions of the Bihar Money Lenders Act, 1938 and the Bihar Money Lenders (Regulation of Transactions) Act, Act mentioned above.
What we have said in that case appropriately covers the contentions of the panics in this case.
We do not therefore consider it necessary to repeat the discussion of the various contentions in this case.
We hold that in the absence of any specific provision in the Act in this case providing for the fixing of the maximum capital which a money lender can invest in money lending business, it was not open to the State Government to frame a rule in that regard and that the rules framed by it about mentioning, in the application, the maximum capital for which the registration certificate was wanted and the mention in the certificate of the amount of the maximum capital for which the certificate is granted, do not lead to the conclusion that the registration of the money lender will become void if he exceeds the limit of the maximum capital laid down in the registration certificate.
We do not consider it necessary now to decide the other point raised with respect to the retrospective operation of the registration certificates of higher denomination obtained during the currency of a registration certificate.
We accordingly allow the appeal, set aside the decree of the Court below and restore the decree of the trial Court.
We direct the respondents to pay the costs of the appellant in the High Court and this Court.
Appeal allowed.
(1) [1966] S.C.R.335.

summary/full:
The appellant filed a suit against the respondents for the recovery of Rs. 8216 due on a promissory note executed by respondent No. 1 for a sum of Rs. 6000.
The plea taken in defence was that the suit was not.
maintainable because the registration of the appellant under section 5(4) and r. 5 of the Orissa Money Lenders Act 1939 had become void on account of the money lent being in excess of the maximum amount of Rs. 2,000 which the appellant was authorised to invest in the business by his registration certificate.
The contention was not accepted by the trial court but the High Court.
accepting it, dismissed the suit.
In appeal, before this Court, by special leave, it was urged on behalf of the appellant that the main Act did not provide for any restriction on the amount of capital that could be invested and that the rules went beyond the Act in making such a provision.
HELD : In the absence of any specific provision in the Act providing for the fixing of the maximum capital which a money lender can invest in money lending business, it was not open to the State Government to frame a rule in that regard and the rules framed by it about mentioning, in the application, the maximum capital for which the registration certificate was wanted and the mention in the certificate of the amount of the maximum capital for which the certificate is granted, do not lead to the conclusion that the registration of the money lender will become void if be exceeds the limit of the maximum capital laid down in the registration certificate.
[348 D] Sant Saranlal vs Parsuram Sahu , relied on.