judgement:
Appeal No. 372 of 1960.
Appeal from the judgment and decree dated April 6, 1955, of the former High Court of Travancore Cochin in Appeal Suit No. 721 of 1951.
Manual T. Paikedy, Mahalinga Iyer and Ganpat Rai, for the appellant.
V. A. Syed Muhummad, for the respondents 1963.
January 15.
, J. This is an appeal by certificate from the judgment of the Travancore Cochin High Court which allowed the appeal preferred by the respondents from the decree of the District Court 498 of Parur dismissing their suit for declaration of title to and recovery of possession of certain properties and for other consequential reliefs.
The relevant facts are as follows The 23 items of property comprised in the schedule to the plaint belonged originally to two persons Ramalinga Iyer ("Iyer" as described by the High Court) and Raman Velayudhan.
They sold them on (6 6 1080 (Malayalam Era which roughly corresponds to the year 1905) to Ittivavira the deceased father of the appellant defendant No. 1.
Part of the consideration for the sale was paid by Ittiyavira in cash and for the balance, he executed two hypothecation bonds in favour his vendors on the same date.
One of the bonds was executed in favour of Raman Velayudhan and the amount secured thereunder was Rs. 308 8 0.
In respect of this amount, items of property Nos. 3, 5, 14 and 18 were hypothecated with Raman Velayudhan by Ittiyavira.
The other bond was in favour of Ramalinga Iyer and under this bond.
Ittiyavira hypothecated with him items Nos. 1, 2, 4, 6 13, 151 7, and 19 23 and also the remaining items, subject to the hypothecation bond in favour of Raman Velavudhan, for securing an amount of Rs.2,191 80 On 3 1.0 1082, Ramalinga Iyer assigned his hypothecation bond in favour of one Sankara Rama Iyer ("Iyen" as described by the High Court).
The parties are in dispute concerning this transaction.
According to one of them, the deed of assignment exhibit V was a sham document and was not intended to take effect while according to the other, it was a genuine document.
It would appear that Ramalinga Iyer had executed a promissory note in favour of one Anantha Iyer ("Iyen" as described by the High Court).
After the death of Ramalinga Iyer, Anantha Iyer instituted a suit against his son Sankara Subha Iyer ("lyen" as 499 described by the High Court) for recovery of the amount thereunder and obtained a decree exhibit VI on 13 11 1088.
Treating the deed of assignment executed by Ramalinga Iyer in favour of Sankara Rama Iyer as a sham document, Anantha Iyer attached the mortgagee rights of Ramalinga Iyer in the hypothecation bond which had been executed in his favour by Ittiyavira.
The rights under this bond were sold in execution and were purchased by Anantha Iyer at court auction.
In a subsequent partition in Anantha Iyer 's family, the rights under the hypothecation bond purchased in execution by him were allotted to his share and that of his brother Manicka Iyer ("Iyen" as described by the High Court).
Thereafter, these two persons instituted a suit against Ittiyavira being O. section No. 59 of 1093 in the District Court at Parur and obtained a decree for realisation of the amount against Ittiyavira.
The decree holders subsequently transferred their decree to one Venkiteswara Iyer ("Iyen" as described by the High Court) which the latter executed and at the court auction held in execution of that decree, he himself purchased the hypothecated properties which are the properties in the suit on 27 4 1099.
Exhibit C is the sale certificate which was granted to him by the court.
Venkiteswara Iyer eventually obtained possession of the properties on 12 7 1099.
It would appear that Raman Velayudhan also assigned the hypothecation bond which was executed in his favour by Ittiyavira in favour of some person who eventually sued on the bond and obtained decree in O. section No. 462 of 1094 in the court of the Munsiff, Moovattupuzha.
In execution of that decree, items Nos. 3, 5, 14 and 18 were purchased by one Mathai Ouseph the brother of the second defendant in the suit on 10 11 1096.
In pursuance of this decree, Mathai Ouseph obtained delivery of possession of 4 items of property (items 3, 5, 14 and 18) on 19 6 1098 500 and thereafter sold them to defendant No. 2 (wife of appellant) on 5 12 1104.
Even before the institution of O. section 59 of 1093 by Anantha Iyer and his brother, Ittiyavira had executed a sale deed in favour of his son the appellant before us whereunder, he conveyed to him all the properties in the suit.
The date on which the sale deed was executed was 8 10 1092.
It may however, be mentioned that the appellant was not made a party to O. section No. 59 of 1093 filed by Anantha Iyer and his brother and the contention raised by the respondents is that the sale in favour of the appellant is not a genuine transaction and therefore he was not a necessary party to the suit.
Ittiyavira died in the year 1107 and on 2 2 1108, Venkiteswara Iyer sold all the suitproperties to the plaintiffs respondents.
Thereafter, the respondents instituted proceecdings under section 145 of the Code of Criminal Procedure in the court of the Magistrate, First Class, Perumbavoor claiming that they were in possession of the suit properties, that the appellant was disputing their possession and that there was a likelihood of a breach of peace because of the attempt of the appellant to "obstruct" their possession.
In these proceedings, the properties were attached and placed in the possession of the Receiver appointed by the court.
Eventually, the court held that the properties were in the possession of the appellant and ordered that his possession be maintained until otherwise ordered by a competent Civil Court.
The order of the Magistrate was affirmed by the Travancore High Court and thereafter, the Receiver handed over the possession of the properties to the appellant.
Consequent upon this order the respondents instituted a suit out of which this appeal arises.
Their contention in the suit is that the alleged sale by Ittiyavira in favour of the appellant is a sham transaction, that therefore he did not obtain any 501 rights, thereunder and that consequently it was not necessary to implied him in O. section No. 59 of 1093.
They also alleged that Mathai Ouseoh did not obtain any rights under his auction purchase because the sale and delivery of possession in execution of the decree in O. section No. 462 of 1094 were benami for Ittiyavira.
For this reason, it Was contended that defendant No. 2 acquired no rights to items 3, 5, 14 and 18 in the plaint.
The appellant disputed the validity of the decree and of the execution proceedings in O. section No. 497 of 1088 and contended that the decree was obtained and the execution proceedings taken out, fraudulently against Ramalinga Iyer 's heirs inasmuch as Ramalinga Iyer had assigned the hypothecation bond in favour of Sankara Rama Iyer on 3 10 1082.
The plea of the appellant thus was that Anantha Iyer did not obtain any rights to the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer, and consequently, Venkiteswara Iyer obtained no rights under his purchase in execution of the decree in O. section No. 59 of 1093.
The entire proceedings were characterised as fraudulent and not binding on Ittiyavira and the suit properties.
The allegation that the alleged sale in favour of the appellant was a sham transaction was denied by them as also the other allegations concerning the purchase of items 3, 5, 14 and 18 by Mathai Ouseph.
The trial court dismissed the suit.
The High Court, however, reversed the decree of the trial court except with respect to items 3, 5, 4 and 18 in the plaint.
No cross appeal or cross objections having been filed by the respondents, the appeal before us is confined to the remaining items provided in the plaint schedule.
The first point raised by Mr. Paikedy for the appellant is that the decree in O. section No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit 102 on the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time.
Even assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation.
If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it.
But it is well settled that a court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do.
It had the jurisdiction over the subject matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction.
As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullifies.
Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmed vs Onkar Pratap Narain (1), and contended that since the court is bound under the provisions of section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so.
Act that the decision relied upon says that section 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings.
The privy council has not said that where the court fails to perform its duty, it acts without jurisdiction.
If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code.
If (1)A.I.R. 503 the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.
The next point raised by learned counsel is that the present suit was barred because it was not instituted within three years of the decision of the Magistrate, First Class, Perumbavoor, holding that the appellant was in possession of the suit properties.
It is no doubt true that the order in question was passed on 28 12 1111 while the suit was instituted in the District Court, Parur on 4 3 1118 and even if limitation is computed with reference to the (late of the order of the High Court dismissing the revision petition the suit will be said to have been instituted more than three years thereafter.
The fact, however, is that the plaint was originally instituted by the responded in the court of the Munsif.
Movattupuzha and numbered as original suit No. 1296 of 1114.
The appellant contended that the valuation of the suit property made by the respondents was low and therefore the court appointed a Commissioner for ascertaining their true value.
The Commissioner reported that the value of the suit properties was Rs. 4,602.
The court thereupon passed an order on 21 2 1118 returning the plaint for presentation to the proper court inasmuch as the sum total of the value of the reliefs claimed in the plaint was beyond its pecuniary limits.
Shortly thereafter, the plaint was presented by the respondents in the District Court at Parur.
If the respondents had filed the suit in the Court of the Munsiff within three years of the date of the final order passed in proceedings under section 145 of the Code of Criminal Procedure but the plaint was returned for presentation to the proper court, they would be entitled under section 14 of the Limitation Act to the deduction of the entire period during which they were prosecuting their suit with due diligence and in good faith in the court of the Munsiff.
Had 504 the suit been barred by time when it was instituted in the court of the Munsiff a plea to that effect could have been taken by the appellant; The defendants do not appear to have done so.
It, therefore, follows that the suit must have been within time, when it was instituted in the court of the Munsiff.
After the plaint was represented in the District Court at Parur, the appellant filed a written statement.
In para 12 of the plaint the respondents have stated thus : "The cause of action for this suit has arisen within the jurisdiction of this court from 15th Kanni 1113, the date of the final order in the summary.
" The only answer to this plea of the respondents which the appellant has given in the written statement is to be found in para 13 of the written statement which reads thus "The plaintiffs have no manner of right what soever, as alleged in para 10 of the plaint.
Even if the plaintiffs had any rights, they have become barred by limitation; and they need not be considered at this juncture.
The plaintiffs have no right to contend like this in the present suit, alter the lapse of a long period since the 2nd defendant 's brother took possession of the properties in execution proceedings.
The plaintiffs are barred from contending so.
" just below the plaint, the respondents have also stated thus: "This suit is first filed in Moovattupuzha Munsiff 's Court as O. section No. 1296/1114.
The defendants contended that the plaint properties are of great value and so a Commissioner was appointed during the trial of the suit to ascertain the value of the properties.
The value was 505 ascertained to be Rs. 4,602/ chs.
14 and so an order was passed from the Moovattupuzha Munsiff 's Court on 21 2 1118 stating that the plaint should be returned and filed in the proper court having jurisdiction to try the case, since the same cannot be tried in the Munsiff 's Court.
According to that order, the plaint was received back on 30 2 1118.
The correct valuation is shown and the plaint is filed in this court together with the court fee memos returned.
" There is no reference to these averments in the written statement of the appellant.
It would thus be clear that the appellant has not raised a sufficiently clear plea of limitation by stating relevant facts and making appropriate averments.
It is apparently because of this that the trial court, though it did raise a formal issue of limitation, gave no finding thereon.
Nothing would have been simpler for the trial court than to dismiss the suit on the ground of limitation if the plea was seriously raised before it.
Had the point been pressed it would not have been required to discuss in detail the various questions of fact pertaining to the merits of the case before it could dismiss the suit.
In the plaint, the respondents claimed that the period of limitation for the suit commenced on 15 2 1113 when the High Court dismissed the revision petition preferred by the respondents.
The appellant has not stated that under article 47 of the Limitation Act, the period of limitation is to be computed not from the date of the revisional order but.
from the date of the original order.
Had he done so, we have no doubt that the respondents would at least have placed on record by amending the plaint the date on which the plaint was instituted in the Court of the Munsiff.
Thus, had the plaint been instituted in the court of the Munsiff say two months before the expiry of the limitation, the suit would have been within time 506 on 4 3 1118 when the plaint was re presented to the District Court, computing the period of limitation even from the date of the original order.
Moreover, the appellants could well have raised the question of limitation in the High Court in support of the decree which had been passed in their favour by the trial court.
Had they done so, the High Court would have looked into the records before it for satisfying itself whether the suit was within time or not.
The point now raised before us is not one purely of law but a mixed question of fact and law.
No specific ground has even been taken in the petition made by the appellant before the High Court for grant of a certificate on the ground that the suit was barred by time.
In the circumstances, we decline leave to the appellant to raise the point of limitation before us.
The next contention of the learned counsel is that the suit is governed by article 142 of the Limitation Act and as the respondents have not established that they were in possession within 12 years thereof, their suit is barred by time.
This plea of the appellant rests upon another contention which is that the delivery of possession to the auction purchaser in O. section No. 59 of 1093 was a sham and fraudulent transaction.
The appellant claimed that he was in possession of these properties at the time of delivery of possession and that he actually obstructed the delivery of possession to the auction purchaser.
According to him, the Gamin who came to effect delivery of possession did not remove the obstruction and therefore what is recorded in exhibit D, the report pertaining to the delivery of possession, establishes at best the delivery of merely symbolical possession Exhibit D shows on its face that actual possession of the properties was delivered by the Amin to the auction purchaser in pursuance of the execution sale.
A presumption as to regularity attaches to the records of the court and such presumption cannot be 507 lightly brushed aside.
In addition to the presumption, however, there is the evidence of P. W. 2 Vasu Vasu Elayath who was one of the persons who had attested the report exhibit D. He swears that the Amin came to the property and effected delivery of possession to the auction purchaser.
As the, High Court has pointed out, he is a respectable person residing in the neighborhood and that since nothing has been brought out in his cross examination to discredit him, he deserves to be believed.
Then there is the evidence of P. W. 3, Meeralava Osakkal Rawther, who was also present at the time of delivery of possession.
Exhibit D states that the charges for beating of a drum at the time of delivery or possession were paid to him (P. W. 3) in token whereof lie had put his signature on the exhibit.
This witness also swears that actual delivery of possession to the auctionpurchaser was effected as stated in exhibit D.
His evidence has also been accepted by the High Court.
We see no reason to take a 'different view of the evidence.
Learned counsel, however, refers us to Ex, J which is a petition dated 16 7 1009 filed by the appellant in the District Court, Parur in O. section No. 59 of 1093 and says that this was filed only four days after the date of delivery of possession.
His contention is that this document would show that the appellant continued to be in possession of the properties.
What is stated in that petition however is this : "For the reasons stated in the accompanying affidavit it is prayed that the Court may be pleased, to declare my possession and rights etc.
over the properties mentioned in the decree in the above suit and to hold that the said properties are not liable to be sold for the said decree, and to allow this petition with costs.
" It would thus be clear that he has only claimed his right to the possession of the properties and not that 508 he had obstructed the delivery of possession of the properties by the Amin to the auction purchaser.
No doubt, the District Judge has recorded an order thereon to the effect that since the appellant does not say that he was dispossessed his application is not tenable.
It seems to us that in the absence of any averments of the kind we have already indicated, the appellant cannot derive any benefit from his application.
It was contended in the High Court and it is contended also before us that the appellant had sent an obstruction petition to the Amin, but he has neither produced a certified copy of that petition nor examined the Amin in proof of what he has said.
In the. circumstances, agreeing with the High Court, we hold that there can be no doubt that actual delivery of possession of the suit properties was effected by the Amin to the auction purchaser on 12 7 1099.
No doubt, in the proceedings under section 145 of the Criminal Procedure Code, there is a finding to the effect that the appellant was in possession.
That, however, means only this, that he was in possession at the date of the preliminary order made in those proceedings.
In view of our finding that actual, delivery of possession was effected to the auction purchascr on 12 7 1099, it must be said that the appellants possession on the date of the preliminary order could only have originated in a trespass subsequent to the delivery of possession on 12 7 1099 and probably during the disputes by reason of which the respondents were compelled to take proceedings under section 145 of the Criminal Procedure Code.
The present suit cannot therefore be regarded as one by auction purchasers for recovery of property on the strength of an execution sale in their favour but only one for eviction of a person who obtained wrongful possession of property by trespass after delivery of possession had been effected through court.
As we have already pointed out, 509 after the application was made by the respondents under section 145 of the Code of Criminal Procedure, the Magistrate before whom it was made ordered attachment of property and placed it in the possession of the Receiver who continued to be in possession till the final decision of those proceedings.
The possession of the Receiver during this period would necessarily ensure for the benefit of the successful party.
if, therefore. this period is taken into account the respondents ' suit would be well within time.
The next point urged by learned counsel is that Anantha Iyer and his brother got no rights by reason of the attachment and sale of the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer because long before their purchase, Ramalinga Iyer had assigned that bond to Sankara Rama Iyer.
The contention of the respondent is that exhibit V under which the alleged assignment was made is a sham document executed by Ramalinga Iyer in order to screen the hypothecation bond from his creditors and to preserve the amount thereunder for his ownbenefit.
It is clear from the evidence including that of the appellant himself that Ramalinga Iyer was deeply in debts at the time of the execution of exhibit V. After the execution of.
exhibit V, Ramalinga Iyer who produced that document for registration before the Sub Registrar himself obtained the document back from him.
There is no evidence to show that thereafter he handed it over to Sankara Rama Iyer or that the latter had accepted the transaction.
The major part of the consideration recited in exhibit V consisted of amounts alleged to be due from Ramalinga Iyer to his Creditors which the assignee was supposed to discharge.
The balance of the consideration was not paid at the time of the execution of the said document but was said to have been adjusted against the amounts due from Ramalinga Iyer to the assignee Sankara Rama Iyer.
There is no evidence to show that any of the debts recited in 510 the document were actually due from Ramalinga Iyer or that any money had been received by him from Sankara Rama Iyer.
The appellant does not even say that he had made enquiries concerning the consideration of this document.
It is further to be borne in mind that though the document was executed in the year 1082, right uphill now, neither Sankara Rama Iyer nor any person claiming under him has made any attempt to realise the amounts due under the hypothecation bond.
The High Court has pointed out thus : "If the assignment was a genuine transaction and was intended to take effect the assignee would not have foregone the amount under the hypothecation bond, especially when he had to get such a large amount from Ramalinga Iyer and also paid a further consideration as mentioned in exhibit V.
That one circumstance, that the assignee has not made any attempt to realise the amount under the hypothecation bond during the 32 years that had elapsed after the assignment and before the institution of the present suit amounts almost to proof positive of the fact that the assignment was not a genuine transaction and was only a sham document executed for the purpose of screening the amount under the hypothecation bond for the benefit of Ramalinga Iyer himself.
" We agree with the observations of the High Court and would add that this circumstance as well as the omission of the appellant to examine any person directly connected with the execution proceedings would justify an inference that the transaction evidenced by exhibit V is not a genuine one and that the document itself is sham and bogus.
Upon this view, we hold that the sale in execution of the decree obtained by Anantha Iyer conveyed to the auctionpurchaser all the rights of the hypothecation bond 511 executed by Ittiyavira in favour of Ramalinga Iver.
The next and the last point urged by learned counsel is that the appellant is not bound by the decree in O. section No. 59 of 1093, because he was Dot made a party thereto.
If in fact the assignment of the properties by Ittiyavira in favour of the appellant was a genuine one, the appellant 's contention would have to be upheld.
The document on which the appellant relies is exhibit XXIX.
According to the respondents, this document is sham and bogus and was executed by Ittiyavira for the purpose of screening the property for his own benefit.
The trial court held that the document was a genuine one but the High Court has reversed that finding.
At the outset, we have to bear in mind the fact that the alleged sale was by a father in favour of his son and that the son at the date of that transaction was not shown to have had any independent means of his own from which to provide for the consideration for the sale.
According to the document, the consideration wasRs.
3,000/ which consisted of Rs. 1,500/ said to have been paid by the appellant to his father from time to time before the transaction, Rs. 1,000/either paid or agreed to be paid by him to his mother in discharge of a debt by his father to her, and Rs. 500/ which had already been paid to his you nger brother in discharge of a debt which the father owed to him.
We agree with the High Court that the recitals excite suspicion.
There is no proof of these payments except the interested testimony of the appellant himself.
In the proceeding& under section 145 of the Criminal Procedure Code, the appellant had stated that he had obtained the necessary funds for obtaining exhibit XXIX from his mother; but in view of a recital in that document that he had to pay Rs 1000/ to his mother, it would appear that he has prevaricated.
Then again, the younger brother who is said to have loaned Rs. 500/ to the appellant 's father was only 14 years, of age at the time of 512 execution of that document.
It is impossible to believe that a young boy like him could have been in the position to loan Rs. 500/ to his father.
It was urged before us by Mr. Paikedy that what the parties really meant was that the appellant was to pay the sums of Rs. 1,000/ and Rs. 500/ respectively to his mother and younger brother so as to discharge his father 's liability to pay them.
If there was any substance in this contention, it should have been advanced before the courts below and not raised for the first time before us.
Apart from that it would appear that despite the execution of the document, Ittiyavira continued to be the owner of the properties comprised in it.
No doubt, the appellant claims to have been in actual possession of the properties and possibly he was, but, as has been pointed out by the High Court, his possession was no more than that of an agent of Ittiyavira.
We, therefore, agree with the High Court that exhibit XXIX was a sham and bogus document and that the transaction evidenced by it is not genuine.
Having thus failed on all the contentions on merits, learned counsel has sought to urge a new point before, us.
The point is that the appeal before the High Court should have been heard not by a Division Bench of merely two judges, but by a Bench of three judges, as provided in section II (1) of the Travancore High Court Act.
1099 (IV of 1099).
Learned counsel admits that the appeal was heard not by the Travancore High Court but by the High Court of Travancore Cochin which came into being after the merger of the two States of Travancore and Cochin.
He 'admits that the Travancore High Court Act, 1099 was repealed by Ordinance II of 1124 which was reenacted by Act.
V of 1125; but he says that section 25 of that Act provided that a Full Bench will hear and decide all appeals from the decrees of the District Courts in which the amount or value of the subject matter is in excess of 513 Rs. 5,000/ .
This provision was also repealed before the appeal in question was even preferred.
According to him, however, the appellants were entitled to prefer an appeal before a Tribunal which existed when the suit itself was instituted.
The rights of parties to a suit in the matter of preferring an appeal are governed by the law as it obtained when the suit was instituted and, therefore, according to him, as under that law in a suit of that kind an appeal lay before a Bench of three judges, it could be heard only by such a Bench and not one consisting of a lesser number of judges.
There are two reasons why this argument cannot be accepted.
In the first place, the High Court of Travancore was itself abolished as a result of the merger and a new High Court came into being the High Court of Travancore Cochin.
The rights of parties to prefer appeals to that High Court were governed initially by 'Ordinance 11 of 1124 and later by Act V of 1125.
These provisions came into being subsequent to, the institution of the suit.
Therefore, the rights of a person aggrieved by the decision of a suit instituted prior to the coming into force of Act V of 1125 were only those which were conferred by that Act.
A litigant has no right to contend that a Tribunal before whom he should have taken an appeal when he instituted the suit, should not be abolished.
The Legislature has full power to enact a 'jaw of that kind and it is not contended before us that the repeal of the Travancore High Court Act was un constitutional.
It would, therefore, follow that whatever rights may have vested in the party in the matter of filing an appeal were abrogated by competent legislature.
New rights were conferred in place of those which were taken away and it is only the new rights which could be availed of.
After the new rights were conferred even they were modified in one respect and that was with regard to the hearing of certain kinds of appeals by a Full Bench.
The rights 514 to have the appeal heard by a Full Bench by virtue of the provisions of Act V of 1125 had never vested in any of the parties to the present litigation.
Therefore, their abrogation by a later law cannot entitle them to make a complaint.
There is yet another reason why the argument of the learned counsel cannot be accepted.
That reason is that an appeal lay to a High Court and whether it is to be heard by one, two or a larger number of judges is merely a matter of procedure.
No party has a vested right to have his appeal heard by a specified number of judges.
An appeal lay to the High Court and the appeal in question was in fact heard, and disposed by the High Court and, therefore, no right of the party has been infringed merely because it was heard by two judges and not by three judges.
No doubt in certain classes of cases, as for instance, cases which involve an interpretation as to any provision of the Constitution the Constitution provides that the Bench of the Supreme Court hearing the matter must be imposed of judges who will not be less than five in number.
But it does nOt follow from this that the legal requirements in this regard cannot be altered by a competent body.
We therefore overrule the contention of the learned counsel and hold that the appeal was rightly heard and decided by a Bench of two judges.
In the result, we affirm the decree of the High Court and dismiss the appeal with costs.
Appeal dismissed.

summary/full:
One Ittiyavira, the deceased father of the appellant purchased properties and paid part of the consideration for the transaction in cash and for the balance executed two hypothecation bonds in favour of his vendors, Ramalinga Iyer and Raman Vela Yudhan.
Ramalinga Iyer assigned his hypothe cation bond in favour of one Sankara Rama Iyer.
He had executed a promissory note in favour of one Anantha Iyer who, after his death, instituted a suit against his son Sankara Subha Iyer for recovery of the amount thereunder and obtained a decree.
Treating the deed of assignment executed by Ramalinga 496 Iyer in favour of Sankara Rama Iyer as a sham document, Anantha Iyer attached the mortgagee rights of Ramalinga Iyer in the hypothecation bond and eventually purchased them.
In a partition in Anantha Iyer 's family, the rights under the hypothecation bond purchased by him were allotted to his share and to that of his brother.
These two persons instituted a suit against Ittiyavira being O. section No. 59 of 1093 and obtained a decree for realisation of the amount against him and transferred their decree to one Venkiteswara Iyer who.
at the court auction held in execution of that decree, purchased the hypothecated properties which are properties in the suit and eventually obtained possession of the properties on 12. 7: 1099.
Before the institution of O. section 59 of 1093 by Anantha Iyer and his brother, Ittiyavira had executed a sale deed of these properties on 8. 10.
1093 in favour of his son, the appellant.
The appellant was not.
male a party to O. section No. 59 of 1093.
Ituyavira died in the 1107 and on 2. 2.
1108, Venkiteswara Iyer sold all the suit properties to the plaintiffsrespondents.
Thereafter the respondents instituted proceedings under section 145 of the Code of Criminal Procedure in the Court of Magistrate claiming their possession over the suit properties which was disputed by the appellant.
The properties were attached and placed in the possession of the Receiver appointed by the court.
Eventually, the court held that the appellant 's possession over the properties be maintained until otherwise ordered by the competent civil court.
The High Court of Travancore affirmed the order of the Magistrate and the appellant was handed over the possession of the properties by the Receiver.
Consequently, the respondents instituted a suit out of which this appeal arises.
The trial court dismissed the suit and that decision was reversed by the High Court.
It was contended before this Court that the decree obtained by Anantha Iyer in O. section 59/1093 was a nullity because the suit was barred by time.
It was further urged that the appeal before tile High Court should have been heard not by a Division Bench of merely two judge but by a Bench of three judges as provided in section II (1) of the Travancore High Court Act, 1099.
Held, that if the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it.
As has often been said, courts have Jurisdiction to decide right or to decide wrong and even though they decide wrong the decree rendered by them cannot be treated as nullities, 497 Maqbul Ahmad vs Onkar Pratap Narain Singh, A. 1.
R. , held inapplicable.
Where the question of limitation was not raised in the High Court, it cannot be allowed to be raised in this Court when the question was one of mixed fact of law.
In the instant case the possession of the Receiver during the proceedings under section 145 of the Code of Criminal Procedure would necessarily unure for the benefit of the successful party and if this period is taken into account, the respondent 's suit would be well within time.
Held, further that no party has a vested right to have his appeal heard by a specified number of judges and no right of the party has been infringed merely because it was heard by two judges and not by three judges.
A litigant has no right to contend that a tribunal before whom he.
should have taken an appeal when he instituted the suit, should not be abolished and unless it can be shown that the repeal of the Travancore High Court Act was unconstitutional, whatever right of appeal may have vested in the party stood abrogated by the competent legislature.


judgement:
Appeal No. 24 of 1962.
Appeal by special leave from the award dated November 23, 1960, of.
the Central Government Industrial Tribunal, Dhanbad in reference No. 31 of 1960.
M. C. Setalvad, Nonicoomar Chakravarty and B. P. Maheshwari, for the appellant.
M. K. Ramamurthi, for Dipat Datta Choudhri, for respondents Nos. 1 to 13.
January 23.
The judgment of the Court was delivered by WANCHOO, J.
This is an appeal by special leave against the order of the Central Government Industrial Tribunal, Dhanbad.
The brief facts necessary for present purposes are these.
A dispute was referred by the Central Government under s, 10 of the Industrial Disputes Act, No. 14 of 1947, (hereinafter referred to as the Act) with reference to the thirteen workmen involved in this appeal in the following terms "Whether the dismissal of the following thirteen workmen of Bhatdee Colliery, swa 711 justified ? If not, to what relief are they entitled and from which date ?" It appears that the thirteen workmen had physically obstructed the surface trammers working in the colliery on different dates, namely October 20, October 27, and November 3,1959 .some of them had also incited the other workmen to join in this act of obstructing the loyal and willing trammers so that they may be prevented from working.
This happened during a strike which was begun on October 20, 1959 by the Colliery Mazdoor sangh to which the thirteen workmen in question belonged.
In consequence the appellant served charge sheets on the thirteen workmen on November 9, 1959 charging that "they physically obstructed the surface trammers on duty at No. 1 and 2 Inclines from performing their duties and controlling the movement of the tubs by sitting in between tramline track and inciting" on various dates, thus violating regulation 38 (1) (b) of the Coal Mines Regulations.
They were asked to explain within 48 hours why disciplinary action should not be taken against them under r. 27 (19) and r. 27 (20) of the Coal Mines Standing Order.
The workmen submitted their explanations and an inquiry was held by the Welfare Officer of the appellant.
The Welfare Officer found all the thirteen workmen guilty of the charges framed against them and recommended their dismissal.
As another reference was pending before this very tribunal in November 1959, the appellant made thirteen applications to the tribunal under section 33 (2) (b) of the Act for approval of the action taken.
Though the workmen submitted their replies in those proceedings they did not contest them thereafter, and the tribunal approved of the action taken.
Thereafter the present reference was made under S.10 of the Act.
The case put forward by the workmen in the present reference was that there was no proper 712 enquiry as the workmen were not given a chance to defend themselves.
It was further submitted that the dismissals were nothing but victimisation pure and simple for trade union activities.
The tribunal apparently held that the inquiry was proper, though it has not said so in so many words in its award.
It may be added that it could hardly do otherwise, for it had already approved of the action taken on applications made under section 33 (2)(b) of the Act.
If the inquiry had not been proper,the tribunal would not have approved of the dismissals.
But the tribunal held that this was a case of victimisation.
It therefore set aside the order of dismissal and ordered the reinstatement of the thirteen workmen within one month of its order becoming operative and ordered that they should be treated as on leave without pay during the period of forced unemployment.
It did not grant back wages as the workmen had also contributed to their forced unemployment to some extent.
In the present appeal, the appellant contends that there was no evidence to justify the conclusion of the tribunal that the dismissals were an act of unfair labour practice or victimisation.
We are of opinion that this contention of the appellant must prevail.
The tribunal was.
not unaware of the fact that where a domestic inquiry is held properly.
the tribunal does not sit in appeal on the findings of the domestic tribunal and it can only interfere with the punishment inflicted as a result of the domestic inquiry where there is want of good faith or basic error or violation of the principles of natural justice, or where the findings are perverse or baseless or the case is one of victimisation or unfair labour practice.
We have already indicated that the tribunal did not find that there was any basic error or violation of the principles of natural justice in the holding of the inquiry; nor did it find that the findings of the inquiry 713 officer were perverse or baseless.
It could hardly do so in the face of its own approval of the action taken on applications made to it under section 33 (2) (b) of the Act, for if it had found that the inquiry was not proper, it would not have approved of the action taken against the workmen by the appellant when it was approached under section 33 (2) (b).
We must therefore proceed on the assumption that the inquiry was held properly and the inquiry officer who held the inquiry was justified on the evidence before him in coming to the conclusion which he did, namely, that the charges had been proved.
The tribunal however posed a further question as to victimisation in this way : "But even if assume that these men were guilty of the offence complained of, let me pause and consider if there is victimisation." .It then proceeded to point out that the workmen concerned had put in ten years service or more and their previous record of service was good.
They were important office bearers of the union and some of them were also protected workmen.
It then referred to previous disputes between the appellant and the union of which these workmen were members and was of the view that the union and its leaders were "eye sore to the appellant.
" The tribunal was, however, conscious that merely because certain workmen were protected workmen they were not thereby given complete immunity for anything that they might do even, though it might be misconduct meriting dismissal.
But it, pointed out that the misconduct complained in this case entailed fine, suspension or dismissal of the workmen, and the appellant chose dismissal, which was the extreme penalty.
It referred to a decision of the Calcutta High Court in National Tobacco Company of India Ltd. vs Fourth Industrial Tribunal (1), where it was held that in a case where the punishment meted out was unconscionable or grossly out of proportion to the nature of the offence that may itself be a ground for holding that the 714 dismissal was an act of victimisation.
It seems to have held that the punishment of dismissal in this case was unconscionable or at any rate grossly out of proportion to the nature of the offence and therefore came to the conclusion that this was a case of victimisation.
Now there is no doubt that though in a case of proved misconduct, normally the imposition of a penalty may be within the discretion of the management there may be cases where the punishment of dismissal for the misconduct proved may be so unconscionable or so grossly out of proportion to the nature of the offence that the tribunal may be able to draw an inference of victimisation merely from the punishment inflicted.
But we are of opinion that the present is not such a case and no inference of victimisation can be made merely from the fact that punishment of dismissal was imposed in this case and not either fine or suspension.
It is not in dispute that a strike was going on during those days when the misconduct was committed.
It was the case of the appellant that the strike was unsatisfied and illegal La it appears that the Regional Labour Commissioner, Central, Dhanbad, agreed with this view of the appellant.
It was during such a strike that the misconduct in question took place and the misconduct was that these ' thirteen workmen physically obstructed other workmen who were willing to work from doing their work by sitting down between the tramlines.
This was in our opinion serious misconduct on the part of the ' thirteen workmen and if it is found as it has been found proved punishment of dismissal would be perfectly justified.
It cannot therefore be said looking at the nature of the offence that the punishment inflicted in this case was grossly out of, proportion or was unconscionable, and the tribunal was not justified in coming to the conclusion that this was a case of victimisation because the appellant decided to dismiss these workmen and was not prepared to let them off with fine or suspension.
715 There is practically no other evidence in support of the finding of the tribunal.
It is true that the relations between the appellant and the union to which these workmen belonged were not happy.
It is also proved that there was another union in existence in this concern.
Perhaps the fact that there were two unions would in itself explain why the relations of the appellant with one of the unions to which these workmen belonged were not happy.
But the fact that the relations between an employer and the union were not happy and the workmen concerned.
were office bearers or active workers of the union would by itself be no evidence to prove victimisation, for if that were so, it would mean that the office bearers and active workers of a union with which the employer is not on good terms would have a carte blanche to commit any misconduct and get away with it on the ground that relations between the employer and the union were not happy.
We are therefore of opinion that the finding of victimisation in this case is based, merely on conjectures and surmises.
We have already considered the main reason given by the tribunal, namely, the nature of the punishment, and have held that that cannot be said to be unconscionable or grossly out of proportion to the nature of the offence.
Another reason given by the tribunal in support of the finding of victimisation is also patently wrong.
The tribunal says that in reports made to the police certain persons were mentioned as having taken part in the misconduct of October 27, 1959; but in the written statement filed by the appellant two other persons, namely Ratan Gope and Sohan Gope who were not mentioned in the police report, were also mentioned as having taken part in the incident of October 27.
The tribunal thereby concluded that Sohan Gope and Ratan Gope were falsely implicated in the incident of October 27.
Curiously, however, it went on to say that this might be a mistake 716 but added that it meant dismissal of these people and the finding in this respect was not only wrong but perverse.
It does appear 'that by mistake in para.
5 of the appellant 's written statement before the tribunal names of Ratan Gope and Sohan Gope are mentioned as having taken part in the incident of October 27.
But the charge sheets which were given to them were only about the incident of October 20.
The finding of the domestic inquiry also was with respect to the incident of October 20.
So it seems that there was no justification for the tribunal to hold that the finding was perverse, because there was no finding that these two persons had taken part in the incident of October 27.
There can be little doubt that there was a mistake in the written statement of the appellant for there was no charge against these two people about the incident of October 27 and no finding about it by the Welfare Officer.
The tribunal therefore was patently wrong in using this mistake as evidence of victimisation.
We are therefore of opinion that there is no evidence worth the name in the present case to support the tribunal 's finding as to victimisation and consequent want of good faith.
In the circumstances the tribunal 's award must be set aside.
We therefore allow the appeal. set aside the award of the tribunal and uphold the dismissal of the thirteen workmen concerned.
In the circumstances there will be no order as to costs.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
The respondents were the employees of the appellant and while a strike was going on in the concern of the appellant they physically obstructed the loyal and willing trammers from working in the colliery and insisted on other workmen to join them in the obstruction.
A charge sheet was served on the respondents and they were asked to show cause why disciplinary action should not be taken against them.
The respondents submitted their explanation and on an inquiry held by the welfare officer they were found guilty and the welfare officer recommended their dismissal.
The appellant filed an application before the Industrial Tribunal under section 33 (2) (b) of the Industrial Disputes Act and the tribunal approved of the dismissal.
Thereafter reference was made under section 10 of the Act and the present appeal is by way of special leave against the order of the Industrial Tribunal made in that reference.
The Tribunal has held that the enquiry by the management was proper but it further held that the dismissal amounted to victimisation.
The main question in the appeal was whether there was victimisation.
Hold, where a domestic inquiry is held properly the tribunal cannot sit in appeal on the findings of the domestic tribunal and it can only interfere with the punishment inflicted as a result of the domestic inquiry where there is want of good faith or basic error or the violation of the principles of natural justice or where the findings are perverse or baseless or the case is one of victimisation.
710 Though in a case of proved misconduct normally the imposition of a penalty may be within the discretion of the management there may by cases where the punishment of dismissal for misconduct proved may be unconscionable or so grossly out of proportion to the nature of the offence that the tribunal may be able to draw an inference of victimisation merely from the punishment inflicted.
Such was not the case here.
National Tobacco Co. of India Ltd. vs Fourth Industrial Tribunal, , referred to.


judgement:
iminal Appeals Nos. 146 and 147 of 1962.
Appeals by special leave from the judgment and order dated February 2, 1962, of the Allahabad High Court in Criminal Appeals Nos. 157 and 158 of 1961 and Criminal Revision No. 384 of 1961.
689 A. section R. Chari, Ravinder Narain, J. B. Daduchanji and 0.
C. Mathur, for the appellants.
G. C. Mathur and C. P. Lal, for the respondent.
January 23.
The judgment of the Court was delivered by RAGHUBAR DAYAL, J.
Moti Singh and jagdamba Prasad, appellants, together with five other persons, were convicted by the Sessions judge of Unnao of offences under section 148, 302 read with 149 and 307 read with 149 I. P. C. Each of them was sentenced to life imprisonment under section 302 read with section 149 1.
On appeal, the High Court acquitted the other five persons of the various offences.
The conviction of the 'appellants under section 148 1.
P. C., was also set aside, but their conviction for the offences under sections 302 and 307 read with section 149 were altered to conviction for offences under sections 302 and 307 read with section 34 1.
On the application of Krishna Kumar, brother of one of the persons who had been murdered, the High Court enhanced the sentence of the appellants for the offence of murder to death.
Moti Singh and jagdamba Prasad have preferred these appeals respectively, after obtaining special leave from this Court.
It is not necessary to detail the facts of the incident in which several persons lost their lives and for participation in which incident the appellants were convicted, as we are of opinion that the conviction cannot be maintained on the basis of the evidence on record as appreciated by the High Court.
All the eye witnesses of the incident deposed in practically identical terms about the progress of the incident in which it was alleged that the members of 690 the accused party fired with guns and pistols both from inside and outside the room on one side of the passage and also from the seori (cattle shed) on the other side of the passage when the victim party passed along the passage.
The High Court felt doubtful about the firing of the shots from the cattle shed, and consequently acquitted Sheo Shankar, jagjiwan and Shankar Dayal who were said to be mainly the persons who had fired from that place.
The High Court, however, believed the prosecution version of the firing from the room and later from the ' platform.
It appears that the, High Court believed this version because the prosecution witnesses stated so and because the statements exhibits Kha 5, Kha 8 and Kha 75 mentioned about the shots being fired from those places.
Statement ex.
Kha 75 does not say so.
It says that firing took place from the front and that these people fired shots with guns.
Statements exs.
Kha 5 and Kha 8 were made by Ram Shankar and jageshwar, who were examined as Court witnesses 1 and 2 respectively.
Ram Shankar and jageshwar have been disbelieved by the Sessions judge and it appears that the High Court did not take any more favourable view of their deposition in Court.
It however seems to have relied on their statements exs.
Kha 5 and Kha 8 respectively, recorded by a Magistrate at the hospital.
In this it was in error.
Those statements could have been used only in either corroborating or contradicting the statements of these Witnesses in Court.
If those witnesses were not to be believed, their previous statements could not be used as independent evidence in support of the other prosecution evidence.
In considering the complicity of individual accused in the firing from the room and later from the chabutra, the High Court said that Raj Kumar, P. W. 1 1 and Chandra Kumar, P. W. 15, were partisan witnesses whose evidence had to be examined 691 with caution, that Shyam Lal, P. W. 12 and Gopi Singh, P. W. 14, were not quite independent witnesses, and that there was nothing particular against Lal Singh, P. W. 17, and Sardar (P. W. 16) who had received gun shot injuries.
It further said : "While considering the evidence of the prosecution witnesses we have to bear in mind the rule that the evidence has to be examined with caution".
It also considered it necessary to refer to the statements exs.
Kha 5 and Kha 8 which, as already stated, could not be used as substantive evidence, and the statement ex.
Kha 75 of Gaya Charan, deceased.
The High Court fully relied on the alleged dying declaration ex.
Kha 75 of Gaya Charan and considered it to be a complete account of the occurrence and the assailants as seen by him.
The view of the High Court about this statement of Gaya Charan may be quoted : "The dying declaration exhibit Ka 75 (Kha 75) of Gaya Charan appears to be a complete account of the occurrence and the assailants as seen by him, for he stated : 'Lallan, Chandu, Raj Narain, Sardar, Sri Prakash were going to the bazar.
Shots were fired from front, jagdamba, Phunnar, Moti and one man whom I know by face fired gunshots on us '.
The statement does not show that Gaya Charan did not see all the assailants who fired gunshots.
It is therefore not possible to hold that any accused not mentioned in the dying declaration of Gaya Charan had also fired shots.
At the same time we see no reason to hold that the dying declaration of Gaya Charan is not true.
jageshwar identified the accused Jagdamba 692 among the assailants.
The evidence of the eye witnesses has therefore to be judged in the light of the statements Exs.
Kha 5 and Kha 8 of Ram Shankar and jageshwar and the dying declaration exhibit Kha 75 of Gaya Charan.
" Now, the evidence relied on by the High Court for the conviction of Jagdamba Prasad consists of the statements of the prosecution witnesses, the statement of jageshwar I, K. Kha 8 and the alleged dying declaration of Gaya Charan exhibit Kha 75.
It also took into consideration the fact that he remained absconding till his arrest on September 30, 1960, the incident having taken place on February 9, 1960.
The evidence relied on for the conviction of Moti Singh consists of the dying declaration exhibit Kha 75 of Gaya Charan and, presumably, also of the statements of the I prosecution witnesses, as the High Court has not specifically stated so.
It has said "We have also no doubt about the participation of the accused Moti in the firing of shots from the east of the galiara.
He is named in the dying declaration exhibit Kha. 75, of Gaya Charan.
" With regard to the criticism for the accused about the indefiniteness of the description of Moti in the dying declaration of Gaya Charan when there were three persons by the name of Moti in the village, the High Court said : "We have no doubt that he is mentioned in the dying declaration.
" How they arrived at that conclusion is not clear from the judgment.
The three persons with the name of Moti belonged to different castes.
The case.
of Moti is not mentioned in the dying declaration 693 of Gaya Charan.
It is therefore not possible to state with any confidence that Gaya Charan must have referred to Moti Singh, 'the appellant, by the name Moti.
in acquitting Sheo Darshan Singh, the High Court said that though there were strong circumstances against him, he was not mentioned in the dying declaration of Gaya Charan and that therefore his presence among the assailants became doubtful.
In acquitting Avadh Behari it again said that his name was not mentioned in the dying declaration of Gaya Charan.
Again, in fixing the number of persons who had taken part in the firing from the room and the platform, the High Court relied on Exhibit Kha 75, the alleged dying declaration of Gaya Charan as the deciding factor.
It said "The number of assailants mentioned in the dying declaration exhibit Kha. 75 is only four.
, It is doubtful if the assailants were more than four in number.
No offence under section 148 was therefore committed and section 149 I.P.C. is not applicable.
" It is clear from the above that the High Court mainly relied on the alleged dying declaration of Gaya Charan for determining that Moti Singh and jagdamba Prasad, appellants, 'fired from the room and the platform and that if their names had not been mentioned in this statement of Gaya Charan, they too would have got the benefit of doubt just as Sheo Darshan Singh and Avadh Behari have got.
There is no other factor for making a distinction between the cases of these two appellants and those two accused as all the prosecution witnesses had named all the accused as assailants of the victim 694 party.
It follows that if this alleged dying declaration of Gaya Charan be inadmissible in evidence as urged for.
the appellants, the appeals have to be allowed and the conviction of the appellants set aside.
The incident took place on February 9, 1960.
Gaya Charan 's injuries were examined by Dr. Bhatnagar the same day.
He found two gun shot wounds of entry 1/4 x 1/4" up to the depth of abdomen and considered those injuries to be caused by gun shot and to be dangerous to life.
Gaya Charan left the hospital.
He was either discharged on the injuries healding up or he left the hospital before they healed up.
There is nothing on record to show in what circumstances he left the hospital.
He died on March 1. 1960.
Sub Inspector Puttu Lal, P.W. 24, has deposed that it was known on March 1, 1960 that Gaya Charan had died in Kanpur and that when he reached the Bhairon Ghat he learnt that the dead body of Gaya Charan had been burnt a couple of hours before.
There is no evidence on record as to what caused Gaya Charan 's death.
In this state of evidence the finding of the Sessions judge that Gaya Charan must have died on account of the injuries received in the incident cannot be held to be a good finding.
What he says in this connection is: "Gaya Charan had a gunshot wound of entry on the left hypochondrium region and one gunshot wound of entry on the right lumbar region.
Both the injuries were dangerous to life, according to the Doctor.
Gaya Charan must have died of these injuries and the mere fact, that no post mortem could be conducted on his dead body before his cremation, does not show that we cannot rely on his dying declaration.
" The mere fact that the two gun shot injuries 695 were dangerous to life is not sufficient for holding that Gaya Charan 's death which took place about three weeks after the incident must have been on account of those injuries.
In this connection our attention was drawn to the fact that Ram Shankar who was also injured in that incident had received one gun shot wound I ' x 1/4" up to the depth of his abdomen above the right end of upper border of Syihphysis Pubes, and that injury was 'also considered by the Doctor to be dangerous to life, but fortunately Ram Shankar did not succumb to the injury.
The High Court did not refer to this question as it appears the admissibility of the alleged dying declaration of Gaya Charan was not raised before it.
That however does not mean that ' we cannot look into the finding of fact about Gava Charan having died on account of the injuries received in the incident.
It is necessary for proving the charge of murder of Gaya Charan that he had died on account of the injuries received, and any finding to that effect, in the absence, of evidence can be looked into by this Court even though the Courts below have confirmed that finding.
We find that there is no evidence to support that finding and hold that Gaya Charan is not proved to have died due to the injuries received in the incident.
The effect of this finding is that the alleged dying declaration of Gaya Charan,, exhibit Kha 75, cannot be admissible in evidence.
Clause (d) of section 32 of the evidence Act makes a statement of a person who has died relevant only when that statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person 's death comes into question.
When Gaya Charan is not proved to have died as a result of the injuries received in the incident, his statement 696 cannot be said to be the statement as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.
This is obvious and is not disputed for the respondent State.
The result then is that the statement of Gaya Charan exhibit Kha 75 is inadmissible in evidence.
It was the mainstay of the judgement of the High Court upholding the finding of the Sessions.judge that Moti Singh and jagdamba Prasad, appellants,were among the persons who had fired from the room and the platform.
When this evidence is to be ignored as inadmissible, the remaining evidence on the record according to the view of the High Court, was insufficient to establish beyond reasonable doubt that these two persons were among the assailants.
The appellants deserve the benefit of that doubt.
They would have got it if the High Court had not erroneously relied on the statement exhibit Kha 75.
We therefore hold that Moti Singh and jagdamba Prasad have not been proved to have taken art in that incident on February 9, 1960, which part to the deaths of Lallan and Matrumal and the causing of hurt to several other persons.
We accordingly allow the appeals, set a de the order of the High Court and acquit Moti Singh and jagdamba Prasad of the offences they were convicted of.
We direct that they be released forthwith, if not required to be detained under any other process of law.
Appeal allowed.

summary/full:
Seven persons including the appellants were convicted for murder.
Relying upon the dying declaration 'of one G, the High Court acquitted five of the accused but convicted the appellants.
G had been injured during the occurrence and had been taken to the hospital where his dying declaration was recorded.
He left the hospital and died 20 days later.
Before any postmortem examination could be held, his body was cremated.
The appellants contended that the dying declaration was inadmissible and that they were entitled to an acquittal.
Held, that the dying declaration was inadmissible in evidence.
There was no evidence on the record as to what caused the death of G.
The mere fact that G had received two gun shot injuries during the occurrence which in the opinion of the doctor were dangerous to life was not sufficient for holding that G must have died on account of these injuries.
Under section 32 (1) of the Evidence Act the Statement of a person who has died is relevant only when it relates to the cause of his death or to any of the circumstances of the transaction which resulted in his death.
When it was not established that G had died as a result of the injuries received at the incident, his statement did not relate to the cause of his death or to the circumstances of the transaction which resulted in his death and did not fall within section 32 (1).


judgement:
minal Appeal No. 201 of 1962.
Appeal by special leave from the judgment and order dated February 20, 1962, of the Bombay High Court in Criminal Appeal No. 1405 of 1961.
C. L. Sareen, for the appellant.
H. B. Khanna and R. H. Dhebar, for the respondent.
January 23.
The judgment of the Court was delivered by SUBBA RAO, J.
This appeal by special leave is directed against the judgment of a division Bench of the 'Bombay High Court setting aside the order of acquittal made by the Additional Sessions judge, Kolaba, and convicting the appellant under section 302, read with section 34, of the Indian Penal Code and sentencing him to imprisonment for life.
The case of the prosecution may be briefly stated.
In the year 1959, two persons by name Ramachandra Budhya and Govind Dhaya were murdered by some people.
In all II accused, including one Deoram Maruti Patil, were brought to 680 trial; and out of them 8 accused, including the said Deoram Maruti Patil, were acquitted.
During that trial Deoram Maruti Patil 's uncle, by name Vishwanath, actively helped Deoram Maruti Patil in the conduct of his defence.
Accused 1 and 2 in the present case are the sons of Govind Dhaya and accused 3 and 4 are the nephews of Ramachandra Budhya.
They bore a grudge against Vishwanath for helping Deoram Maruti Patil and bringing about his acquittal.
On August 19, 1960, Vishwanath and one Mahadeo Pandu Patil left their village at about 8.30 p.m. in order to go to Pezari en route to Alibag.
When they were walking along a bund, accused I to 4 came from behind, armed with long sticks and the stick carried by accused 1 had a blade attached to it.
They belaboured the deceased resulting in his death.
The four accused had to stand their trial for the murder of Vishwanath before the Court of the Additional Sessions judge, Kolaba.
The charge against them was that they, in view of their common grudge against the deceased, combined together and did away with the deceased.
The said four persons were charged under section 302, read with section 34, of the Indian Penal Code for committing the murder of the deceased in furtherance of their common intention.
All of them were also charged separately for the substantive offence under section 302 of the Indian Penal Code.
All the accused pleaded not guilty to the charge.
While accused 1, 3 and 4 pleaded alibi, accused 2 raised a plea of private defence.
The prosecution examined eye witnesses, who deposed that the four accused overtook the deceased when he was going to village Pezari and felled him down by giving him lathi blows.
None of the witnesses spoke to the presence of any other person, named or unnamed, who took part in the assault of the deceased.
The learned Additional Sessions judge found that the prosecution witnesses were not speaking 681 the truth and that the version given by accused 2 was the probable one.
In the result he acquitted all the accused.
The State preferred an appeal to the High Court against the said order of acquittal under section 302, read with section 34, of the Indian Penal Code ; but no appeal was preferred against the order of acquittal under section 302 of the Indian Penal Code.
The judgment of the High Court discloses that the learned judges were inclined to believe the evidence of the witnesses, other than Kashinath and Shridar.
But they dismissed the appeal against accused 1, 3 and 4 on the ground that the appeal was against an order of acquittal.
But in regard to accused 2, they held that he was one of the participants in the assault and there was no basis for his plea of private defence.
Having come to that conclusion, the learned judges convicted accused 2 under section 302, read with section 34, of the Indian Penal Code.
As regards the persons who participated in the assault along with accused 2, it would be appropriate to quote the words of the High Court itself : "Some of the other accused were undoubtedly concerned with the incident along with accused No. 2.
Since it is possible that the story as given by the prosecution witnesses, and parti cularly by Mahadeo, was exaggerated, it is not safe to hold that each one of the other accused was also a participant in the offence.
In view of the possibility that one or more of the other accused, i.e., accused Nos. 1, 3 and 4, might not have participated in the offence, we do not propose to interfere with the acquittal of these accused.
But we are satisfied that accused No. 2 along with one or more of the other accused committed this offence and that accused No. 2 was, therefore, clearly guilty under section 302 read with section 34 I. P. Code".
To put it in other words, they, acquitted accused 1, 3 and 4 on the ground that it was doubtful whether 682 any one of them participated in the commission of the offence and convicted accused 2 on the ground that one or more of them might have participated in the offence.
Accused 2 has filed the present appeal against the judgment of the High Court.
The argument of teamed counsel for the appellant may be put thus : The learned Additional Sessions judge acquitted the accused under section 302 of the Indian Penal Code and also under section 302, read with section 34, of the said Code.
The appeal in the High Court was confined only to the acquittal of the accused under section 302, read with section 34, of the Indian Penal Code.
The charge as well as the evidence was only directed against the four named accused as the participants in the common intention to commit the murder of the deceased.
The High Court having acquitted accused 1, 3 and 4.
inconsistently convicted accused 2 for having committed the murder of the deceased jointly with the three accused who had been acquitted.
To put it differently, the argument is that when three of the four named accused, who were charged under section 302, read with section 34, of the Indian Penal Code, were acquitted, the court could not convict only one of the accused on the basis of constructive liability.
Learned counsel for the respondent counters this argument by stating that though the charge as well as the evidence was directed against the 4 named accused, a court could come to the conclusion that 3 of the 4 named accused are not identified but more than one had taken part in the commission of the offence and that in the present case on a fair reading of the entire judgment we should hold that the High Court found that though accused 1, 3 and 4 were not identified, 3 unidentified persons must have taken part in the murder.
Section 34 of the Indian Penal Code reads : "When a criminal act is done by several per sons, in furtherance of the common intention 683 of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
" It is well settled that common intention within the meaning of the section implied a pre arranged plan and the criminal act was done pursuant to the prearranged plan.
The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence.
If that be so, before a court can convict a person under section 302, read with section 34, of the Indian Penal Code, it should come to a definite conclusion that .the said person, had a prior concert with one or more other persons, named or unnamed, for committing the said offence.
A few illustrations will bring out the impact of section 34 on different situations.
(1) A, B, C and D are charged under section 302, read with s.34, of the Indian Penal Code, for committing the murder of E.
The evidence is directed to establish that the said four persons have taken part in the murder.
(2) A, B, C and D and unnamed others are charged under the said sections.
But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence.
(3) A, B, C and D are charged under the said sections.
But the evidence is directed to prove , hat A, B, C and D, along with 3 others, have jointly committed the offence.
As regards the third illustration, a Court is certainly entitled to come to the conclusion that one of the, named accused is guilty of murder under section 302, read with section 34, of the Indian Penal Code, though the 684 other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence.
In the second illustration, the Court can come to the same conclusion and convict one of the named accused if it is satisfied that no prejudice has been caused to the accused by the defect in the charge.
But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence.
But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused ? Can it hold, in the absence of a charge as well as evidence ', that though the three accused are acquitted, some other unidentified persons acted conjointly along with one of the named persons ? If the Court could do so, it would be making out a new case for.
the prosecution : it would be deciding contrary to the evidence adduced in the case.
A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence.
There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration.
In support of the contention that a Court, even in the first illustration, can acquit 3 of the 4 accused named in the charge on the ground that their identity has not been established, and convict one of them on the ground that more than one took part in the commission of the offence, reliance is placed upon the decision of this Court in Mohan Singh vs State of Punjab (1).
There, the appellants, along with three others, were charged with having committed offence under section 302, read with section 149, as well as section 323, read (1) [1962] Supp. 3 S.C.R. 848. 858. 685 with section 149, of the Indian Penal Code.
The Sessions judge acquitted two of them, with the result 3 of them were convicted.
One of the accused was convicted under section 302 and section 147 and two of the accused were convicted under section 302, read with section 149 and section 147, of the Indian Penal Code.
The High Court confirmed their convictions.
On appeal by special leave to this Court, two of the accused convicted under section 302, read with sections 149 and 147, of the Indian Penal Code, contended, inter alia, that as two of the five accused were acquitted, their conviction under section 302, read with sections 149 and 147, was bad in law, This Court held on the evidence that the said two accused had done the act pursuant to a pre arranged plan and therefore they could be convicted under section 302, read with section 34, of the Indian Penal Code.
But in the course of the judgment different situations that might arise in the context of the question now raised were noticed.
Adverting to one of the situations similar to that now before us, this Court observed : "Cases may also arise where in the charge, the prosecution names five or more persons and alleges that they constituted an unlawful assembly.
In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then section 149 cannot be invoked.
Even in such cases, it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named.
In such cases, either the trial court or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily 686 displace the charge under section 149 because along with the two or three persons convicted were others who composed the unlawful assembly but who have not been identified and so have not been named.
In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on the evidence the court of facts is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five.
It is true that in the last category of cases, the court will have to be very careful in reaching the said conclusion.
But there is no legal bar which prevents the court from reaching such a conclusion.
" It will be seen from the.
said observations that this Court was visualizing a case where there was evidence on the record from which the court can come to such a conclusion.
It may be that the charge discloses only named persons; it may also be that the prosecution witnesses named only the said accused; but there may be other evidence, such as that given by the court witnesses, defence witnesses or circumstantial pieces of evidence, which may disclose the existence of named or unnamed persons, other than those charged or deposed to by the prosecution witnesses, and the court, on the ' basis of the said evidence, may come to the conclusion that others, named or unnamed, acted conjointly along with one of the accused charged.
But such a conclu sion is really based on evidence.
The observations of this Court really apply to a case covered by the third illustration given by us.
But the present case falls outside the said three illustrations.
The High Court gave conflicting findings.
While it acquitted accused 1, 3 and 4 under section 302, read with section 34 of the Indian Penal 687 Code, it convicted accused 2 under section 302, read with section 34, of the said Code, for having committed the offence jointly with the acquitted persons.
That is a legally impossible position.
When accused were acquitted either on the ground that the evidence was not acceptable or by giving benefit of doubt to them, the result in law would be the same : it would mean that they did not take part in the offence.
The effect of the acquittal of accused 1, 3 and 4 is that they did not conjointly act with accused 2 in committing the murder.
If they did not act conjointly with accused 2, accused 2 could not have acted conjointly with them.
Realizing this mutually destructive findings of the High Court, learned counsel for the State attempted to sustain the findings of the High Court by persuading us to hold that if the said finding was read in the context of the whole judgment, it would be clear that the learned judges meant to hold that persons other than the acquitted accused conjointly acted with the convicted accused.
We have gone through the entire judgement carefully with the learned counsel.
But the observations of the learned judges ;is regards the " 'other participants" in the Grime must in the context refer only to the " 'one or other of the said three acquitted accused participated in the offence committed by accused 2.
There is not a single observation in the judgment to indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard.
We, therefore, hold that the judgment of the High Court cannot stand.
We are satisfied that on the findings arrived at by the High Court, the conviction of accused 2 is clearly wrong.
In the result, we allow the appeal, set aside the conviction of the appellant and direct him to be set at liberty.
Appeal allowed.

summary/full:
The four accused persons stood their trial before the Additional Sessions judge for the murder of one Vishwanath.
The charge against them was that they in view of their common grudge a against the deceased, combined together and did away with the deceased.
They were charged under section 302 read with section 34 of the Indian Penal code and were also separately charged under section 302 of the Penal Code.
All pleaded not guilty to the charge and accused 1, 3 and 4 pleaded alibi, while accused 2 raised a plea of private defence.
The learned Additional Sessions judge acquitted all the accused on the ground that the prosecution witnesses were not speaking the truth and the version given by accused 2 was the probable one.
The State preferred an appeal to the High Court against the order of acquittal under section 302, read with section 34, but not against the acquittal under section 302 of the Penal Code.
The High Court acquitted accused 1, 3 and 4 on the ground that it was doubtful whether any one of them participated in the commission of the offence and convicted accused 2 on the ground that one or more of them might have participated in the offence.
Accused 2, the appellant, therefore, filed this appeal and contended that when three of the four named accused, who were charged under section 302, read with section 34, were acquitted, the court could not convict only one of the accused on the basis of constrictive liability.
Held that before a court could convict a person under section 302, read with section 34, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, for committing the said offence.
Held, further, that when accused were acquitted either on the ground that the evidence was not acceptable or by giving 679 benefit of doubt to them, the result in law would be the same it would mean that they did not take part in the offence.
The effect of the acquittal of accused 1, 3 and 4 is that they did not conjointly act with accused 2 in committing the murder.
If they did not act conjointly with the appellant, he could not have acted conjointly with them.
The judgment of the High Court does not indicate that persons other than the said accused participated in the offence, nor is there any evidence in that regard, therefore, the conviction of the appellant must be set aside.
Mohan Singh vs State of Punjab, [1962] Supp.
3 section C. R. 848, held inapplicable.