judgement:
ppeal (Civil Appeal No. 32 of 1950), from a judgment and order of the High Court of Judicature at Madras dated 5th January, 1948, reversing an order of the District Judge of East Tanjore in an applica tion under section 47 and O. XXI, r. 2, of the Civil Procedure Code.
R.K. Kesava Aiyangar (T. K. Sundararaman, with him) for the appellants.
section Ramachandra Aiyar for the respondent.
March 5.
The judgment of the Court was delivered by MUKHERJEA J.
This appeal is on behalf of the decree holders in a mortgage suit and it is directed against a judgment and order of a Division Bench of the Madras High Court dated January 5, 1948, by which the 294 learned Judges reversed, on appeal, an order of the District Judge of East Tanjore made in a proceeding under section 47 and Order 21, rule 2, of the Civil Procedure Code.
The material facts are not in controversy and may be briefly stated as follows.
The appellants before us are the representatives of three original plaintiffs who, as mortga gees, instituted a suit (being O.S. No. 30 of 1934) in the Court of the District Judge, East Tanjore, for enforcement of a mortgage, against the present respondent, who was defendant No. 1 in the suit, and six other persons.
The mortgage bond, upon which the suit was brought, was executed by defendant No. 1 for himself and his minor undivided brother, the defendant No. 2, and also as authorised agent on behalf of defendants 3 to 7 who were interested in a joint family business.
The suit was contested by all the defendants except defendant No. 1, against whom it proceeded ex parte, and there was a preliminary decree passed on May 15,1937, by which a sum of RS.
1,08,098 was directed to be paid by defendant No.1 and defendants 3 to 7, in default of which the plaintiffs were declared entitled to apply for a final decree for sale of the mortgaged properties, and the suit was dismissed against defendant No. 2.
Against this decree, two appeals were taken to the Madras High Court, one by defendants 3 to 7 being Appeal No. 48 of 1938 who contended that the mortgage was not binding on them or on their shares in the joint family property; and the other by the plaintiffs being Appeal No. 248 of 1938 who chal lenged the propriety of the judgment of the trial judge in so far as it dismissed their claim against defendant No. 2.
During the pendency of these appeals, the Madras Agricultur ists ' Relief Act (Act IV of 1938) came into force and appli cations were made by defendants 2 to 7 to the High Court, praying that in the event of a decree being passed against them, the decretal debt might be scaled down in accordance with the provisions of the Act.
The defendant No. 1, who did not appear at any stage of the proceeding, did not make any such application.
The High Court forwarded 295 these applications to the lower court for enquiry into the matter and for return, with its finding on the question as to whether the applicants were agriculturists, and if so, to what extent, the decretal dues should be scaled down.
The District Judge, ' after making enquiries, submitted a finding that the applicants were agriculturists and that the debt, if scaled down, would amount to Rs. 49,255 with interest thereupon at 6% per annum from 1st of October, 1937, exclu sive of costs.
On receipt of this finding, the appeals were set down for final hearing and by their judgment dated March 23, 1942, the learned Judges of the High Court accepted the finding of the court below and held that defendants 2 to 7 were entitled to have the debts scaled down; but as no application had been made on behalf of defendant No. 1, he was held entitled to no relief under the Act.
A decree was drawn up in accordance with the judgment.
The amount due by defendants 2 to 7 was stated to be Rs. 49,255 with inter est thereon at 6% per annum; while, so far as defendant No. 1 was concerned, the decree of the trial judge was affirmed subject to a slight modification regarding the rate of interest.
The defendant No. 1 thereupon filed an applica tion in the court of the District Judge, East Tanjore, claiming relief under the Agriculturists ' Relief Act alleg ing that he too was an agriculturist and hence entitled to the benefits of the Act.
The application was dismissed on February 25, 1943, on the ground that as the decree had already been passed by the High Court definitely negativing his claim to any relief under the Agriculturists ' Relief Act, such application was not entertainable by the lower court.
The next step taken by the defendant No. 1 was to file an application in the High Court itself, praying for setting aside the ex parte decree which excluded him from the benefits of Act IV of 1938.
This application was re jected by the High Court on December 13, 1943.
As no payment was made in accordance with the prelimi nary decree passed by the High Court, a final decree in terms of the same was passed by the 296 District Judge on September 25, 1943. ' Proceedings for execution of this final decree were started on August 16, 1944, in E.P. 2 of 1945 of the court of the District Judge, East Tanjore.
Two lots of the mortgaged properties were put up to sale and purchased by the decree holders for a total sum of Rs. 12,005 on July 15, 1946.
The sale was con firmed on August 17, 1946, and part satisfaction of the decree was entered for that amount.
Apparently, certain terms of settlement were thereafter offered by the judgment debtors.
The estate of the decree holders was in the hands of the Receivers and from the Receivers ' report dated January 10, 1947, it appears that the Receivers agreed with the sanction of the court, to receive Rs. 24,000 only from or on behalf of defendant No. 2 and release him and his share of the mortgaged property from the decretal charge.
Likewise, the Receivers were agreeable to receive Rs. 48,000 from defendants 3 to 7 and to release them and their proper ties from the decretal debt.
With regard to defendant No. 1, the proposal, which seems to have been accepted by the Receivers, was that the amount payable by him under the decree was to be settled at Rs. 37,500 and one Yacob Nadar would 'pay this amount on his behalf on consideration of the decree against defendant No. 1 being assigned to him by the Receivers excluding the rights of the latter to execute the decree against defendants 2 to 7 as scaled down by the High Court.
The records of the execution case show that on January 20, 1947, a sum of Rs. 24,000 was paid on behalf of defend ant No. 2; and his properties, namely, lots 2 and 6 were exonerated from the decree.
On January 27, 1947, a sum of Rs. 30,000 was paid by defendants 3 to 7 and on February 17 following, they paid a further sum of Rs. 18,610 12 0.
These three amounts aggregated to Rs. 72,610 12 0.
Nothing was done towards the payment of the sum of Rs. 37,500 by defend ant No. 1 or by Yacob Nadar, but on March 6, 1947, the defendant No. 1 deposited in court a sum of Rs. 3,215 and put in a petition under section 47 and 297 Order 21, rule 2, Civil Procedure Code, praying that as the amount thus deposited together with the payments already made completely wiped off the amount due under the decree as scaled down by the High Court in favour of defendants 2 to 7, full satisfaction of the decree might be recorded exoner ating the mortgaged properties and also the defendant No. 1 himself from any further liability in respect of the decre tal debt.
The position taken up by defendant No. 1, in substance, was that the mortgage debt was one and indivisible and even though different amounts were mentioned as payable by two groups of defendants in the decree, the decree holders were bound under the terms of the decree to release the entire mortgaged property even on payment of the amount directed to be paid by defendants 2 to 7.
In other words, even though the defendant No. 1 's application for relief under the Madras Agriculturists ' Relief Act was expressly rejected and he was held liable for the entire amount of the mortgage debt, he would still be entitled to avail himself of the benefit of the scaling down of the decree in favour of defendants 2 to 7.
This contention was negatived by the District Judge, but was accepted by the High Court on appeal, who allowed the application of defendant No. 1 and directed that the court below should enter up full satisfac tion of the mortgage decree.
It is against this judgment that the decree holders have come up on appeal to this court.
The learned Judges of the High Court observed at the outset that in the working of the Madras Agriculturists ' Relief Act alongside the provisions of the Transfer of Property Act several curious and novel situations had arisen for which it was not possible always to find logical solu tions.
They then proceeded to discuss the various decisions of the Madras High Court which had a bearing on this point and the conclusion which they reached may be summed up in their words as follows: "It is no doubt somewhat odd that when a person is declared liable to pay a larger amount he should on 298 payment or tender of a smaller amount get his property exonerated from liability but this is inherent in and arises out of the proposition established by the decisions already dealt with, namely, that by the application of the principle of unity and indivisibility of a mortgage decree a non agriculturist can indirectly get relief which he cannot directly get".
It seems to us that the High Court 's approach to the case has not been a proper one and the conclusion it has reached cannot be supported in law.
The learned Judges appear to have overlooked the fact that they were sitting only as an executing court and their duty was to give effect to the terms of the decree that was already passed and beyond which they could not go.
It is true that they were to interpret the decree, but under the guise of interpretation they could not make a new decree for the parties.
As said above, the mortgage decree was scaled down by the High Court in favour of defendants 2 to 7 only and the amended decree directs that the said defendants do pay into court the sum of Rs. 49,255 with certain interest and costs on payment of which the plaintiff was to bring into court all the documents in his power or possession relating to the mortgage and reconvey or retransfer the property if so required.
So far as defendant No. 1 is concerned, the decree states in clear and express terms that he is to pay the sum of Rs. 1,05,000 and odd and it is on payment of this sum only that redemption would be allowed of the mortgaged property.
If the decision of the High Court is correct, this direction in the decree would be manifestly unmeaning and without any effect.
What is said, however, on behalf of the respondent is that he is not claiming any benefit in viola tion of this clause.
By virtue of the decree against defend ants 2 to 7 being satisfied, the entire mortgaged property would, by force of the very decree, be freed from the debt and if the respondent gets any benefit thereby, such benefit would be merely incidental or consequential in its nature.
The High Court agreed in substance with this contention 299 and based its decision entirely upon the view that by opera tion of the principle of indivisibility of the mortgage decree, a non agriculturist debtor, whose debt has not been scaled down under the provisions of the Agriculturists ' Relief Act, may indirectly get the benefit of the relief which has been granted to his agriculturist co debtor under the provisions of the Act.
The general law undoubtedly is that a mortgage decree is one and indivisible and exceptions to this rule are admitted in special circumstances where the integrity of the mortgage has been disrupted at the instance of the mortgagee himself; e.g., when there is severance of the interests of the mort gagors with the consent of the mortgagee or a portion of the equity of redemption is vested in the latter.
It is to be noted, however, that the Madras Agriculturists ' Relief Act is a special statute which aims at giving relief not to debtors in general but only to a specified class of debtors, viz., those who are agriculturists as defined in the Act.
To this extent it trenches upon the general law and section 7 of the Act expressly provides that "notwithstanding any law, custom, contract or decree of court to the contrary, all debts payable by an agriculturist at the commencement of this Act shall be scaled down in accordance with the provi sions of this chapter".
Thus in case of a mortgage debt when the loan has been advanced to more than one person, if one of the debtors happens to be an agriculturist while others are not, the agriculturist debtor would certainly be enti tled to have his debts scaled down under the provisions of the Act in spite of the provision of general law which prevents a mortgagor from denying the liability of the interest which he owns in the mortgaged property to satisfy the entire mortgage debt.
There is, therefore, nothing wrong in law in scaling down a mortgage decree in favour of one of the judgment debtors, while as regards others the decree is kept intact.
The Madras High Court expressly adopted this view in Rainier vs Srinivasiah (1), which is one of the (1) [1940] 2 M. 39 39 300 decisions referred to in the judgment appealed from.
The fact that in that case it was a puisne mortgagee and not a mortgagor whose application for relief under section 19 of the Madras Agriculturists ' Relief Act was allowed, does not make any difference in principle.
The puisne mortgagee was made a party defendant in the suit instituted by the first mortgagee to recover his dues and as the puisne mortgagee was liable to pay the debt due to the first mortgagee, he was held to be a debtor and hence entitled to claim the benefit of section 19 of the Agriculturists ' Relief Act.
It may be mentioned here that section 14 of the Madras Agricul turists ' Relief Act which provides for separation of a debt incurred by a Hindu family, some members of which are agri culturists while others are not, affords a clear indication that the splitting up of a debt in such circumstances is quite in accordance with the scheme of the Act.
The catena of cases upon which the learned Judges of the High Court relied in support of their decision seems to proceed on a different principle altogether and whether that principle is right or wrong, it has, in our opinion, no application to a case like the present.
In this class of cases, the mortgagors were agriculturists and hence entitled to have their debts scaled down under the Agriculturists ' Relief Act, but there were purchasers of the mortgaged property who were not agriculturists, and the question arose whether a purchaser could get the benefit of the debt scaled down in favour of the original debtors.
This question was answered in the affirmative.
The reason for taking this view was thus given by the learned Judges in Arunachalam Pillai vs Seetharam(1), where the purchase of the equity of redemp tion was at an execution sale: "When the 12th respondent purchased the properties in court auction, he took them subject to the burden of the appellant 's mortgage and if the burden is by reason of the provisions of section 8 refer.red to above reduced without pay ment, the purchase proves to that (1) 301 extent an advantageous one, and there is nothing in the Act to deprive him of the fruits of his.
lucky purchase, even though he is not an agriculturist.
He gets the benefit of the scaling down not because the provisions of the Act apply to him, for obviously they do not, but because such benefit is a necessary incident of his purchase under the general law and the Act does not deprive him of it.
" A somewhat different reason was assigned in Pachigola vs Karatam(1) which however was a case where a portion of the.
equity of redemption was transferred to a purchaser by a private sale.
It was held that the court by allowing the mortgagor to redeem the mortgage sale was not conferring on the purchaser, a non agriculturist, the benefit of the Act, as he would have to refund to his vendor the purchase money reserved with him which as a result of the scaling down he would not have to pay to the mortgagee.
In both these cases, the question was raised in the proceeding for scaling down of the decree under the provisions of the Agricultur ists ' Relief Act itself and not at the execution stage.
There is however the case of Subramanian vs Ramachandra (2), where the question arose in course of execution pro ceedings and a purchaser of a portion of the equity of redemption was held to be entitled to the benefit of the scaled down decree in favour of the mortgagors, although his own application for relief under the Act was refused.
It is not necessary for purposes of this case to express any opinion as to the correctness or otherwise of these deci sions.
It is enough to say that the ratio decidendi in all these cases is not applicable to the case before us.
In the present case there is no purchaser of the mortgaged property and consequently there is no question of the pur chaser, who is not an agriculturist himself, being entitled to the benefit of a decree which has been scaled down in favour of the agriculturist mortgagor.
Here the judg ment debtors are the mortgagors themselves and according to the plain provisions of the Agriculturists ' Relief Act there could (1) (2) 302 not be any objection to a decree for reduced amount being passed against an agriculturist debtor, while the same relief is not given to his co debtors who do not fulfil that description.
Some exception could undoubtedly be taken to the form and wording of the decree that has been passed in the present case.
The decree, in our opinion, should not only have stated the amount payable by defendant No. 1 and that by defendants 2 to 7 separately but should have expressly directed ,that on payment of the amount directed to be paid by defendants 2 to 7 their interest alone in the mortgaged property would not be liable to be sold.
The further direc tion should have been that in case they did not pay this amount, the whole of the mortgaged property including their interest would be sold for the entirety of the mortgage debt for which defendant No. 1 was made liable.
It is true that the decree contains no such clear directions but reading the decree as a whole and having regard to the actual decision in the case, this must be taken to be its plain implica tions.
The subsequent agreement between the parties arrived at in course of the execution proceedings by which the decreeholders agreed to release the interest of defendant No. 2 and that of defendants 3 to 7 separately on payment of certain specified amounts by 'them proceeds clearly on the assumption that the mortgage debt and the security have been split up, and in our opinion it is not possible for the defendant No. 1 to contend that the mortgage debt remained indivisible.
Our conclusion is that the view taken by the District Judge was right and should not have been disturbed.
The result is that the appeal is allowed, the order of the High Court is set aside and that of the District Judge restored.
We make no order as to costs of this appeal.
Appeal allowed.

summary/full:
Under the Madras Agriculturists ' Relief Act, 1938, a mortgage decree can be sealed down in favour of some of the judgment debtors alone, while as regards the others it is kept intact.
In a suit to enforce a mortgage executed by defendant No. 1 on his own behalf and on behalf of defendants Nos. 2 to 7, the defendant No. 1 remained ex parte, and the others contested the suit.
A decree for Rs. 1,08,098 was passed by the trial court.
The Madras Agriculturists ' Relief Act, 1938, was passed during the pendency of an appeal and cross appeal, and on the application of defendants Nos. 2 to 7 under the said Act the amount of the decree was sealed down to Rs. 49,255 so far as defendants Nos. 2 to 7 were con cerned.
So far as defendant No. 1 was concerned the decree for the full amount remained as it was.
Defendant No. 1 thereupon applied for scaling down, but his 293 application was rejected.
Defendants Nos. 2 to 7 deposited certain amounts and got their properties released.
Defend ant No. 1 deposited the balance of the amount that remained due under the decree as scaled down on the application of defendants Nos. 2 to 7, and prayed that full satisfaction of the decree may be recorded.
The Subordinate Judge rejected this application but the High Court, on appeal, held that defendant No. 1 was entitled to the benefit of the scaling down in favour of defendants Nos. 2 to 7, as the mortgage debt was one and indivisible.
On further appeal: Held, that the ratio decidendi of the cases in which it was held that a purchaser of mortgaged properties was enti tled to the benefit of a decree which has been scaled down, even though the purchaser himself was not an agriculturist was not applicable to the present case.
According to the plain provisions of the Act, there was no objection to a decree for a reduced amount being passed against an agricul turist debtor, while the same relief is not given to his co debtors, and defendant No. 1 was not entitled to claim the benefit of the scaling down of the decree debt in favour of defendants No. 2 to 7.
Judgment of the Madras High Court reversed.
Ramier vs Srinivasiah ( referred to.
Arunachalam Pillai vs Seetharam (119413 1 M.L.J. 561), Pachigola vs Karatam ( , Subramaniam vs Ramachandra ( distinguished.


judgement:
minal Appeal No. 62 of 1953.
Appeal under.
Article 134(1)(c) of the Constitution from the Judgment and Order dated the 27th March 1953 of the High Court of Judicature at Patna in Criminal Revision No. 1290 of 1951 arising out of 79 the Judgment and Order dated the 12th November 1951 of the Court of Sessions Judge, Singhbhum in Criminal Revision No. 16 of 1951.
Mahabir Prasad, Advocate General for the State of Bihar (Shyam Nandan Prasad and M. V. Sinha, with him), for the appellant.
section N. Mukherji, for the respondent.
March 24.
The Judgment of the Court was delivered by SINHA J.
In this appeal we did not think it necessary to hear the counsel for the respondents on the merits of the decision appealed from in the view we have taken, as will presently appear, of the terms of the surety bond which was being sought to be enforced against the sureties, the respondents in this Court.
The surety bond in question was taken in circumstances which clearly appear from the follow ing resolution of the Government of Bihar dated the 17th October 1946: "Whereas one Maulavi A. Ali Khan, who was convicted under section 120 B read with section 420, Indian Penal Code by the First Special Tribunal, Calcutta and sentenced to four years ' rigorous imprisonment and a fine of rupees one lac which conviction and sentence have been subsequently upheld by the Patna High Court, has submitted to the Provincial Government a petition praying for suspension of his sentence in order to enable him to prefer an appeal against the said conviction and sentence to the judicial Committee of the Privy Council And Whereas the Provincial Government have granted the prayer of the petitioner subject to the conditions hereinafter specified which the petitioner has accepted: Now, therefore, the Governor of Bihar hereby orders that the execution of the aforesaid sentence of Maulavi A. Ali Khan be suspended pending the hearing of the proposed appeal to the Judicial Committee of the Privy Council on his furnishing security worth Rs. 50,000 with two sureties of Rs. 25,000 each to the 80 satisfaction of either the Sub Divisional Officer, Jamshedpur or the Deputy Commissioner of Singhbhum and undertaking (1) to furnish proof by the 1st December, 1946 of his having taken all necessary steps for the filing of the appeal and also (2) to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly.
The petitioner, if in custody, may be released if he complies with the above conditions.
By order of the Governor of Bihar, (sd.) T.G.N. Ayyar, Secretary to Government".
In pursuance of that resolution the surety bond in question was taken from the respondents.
The material portion of the bond (exhibit 2) is in these terms: "We, section T. Karim, son of Abdul Wahab, by caste Mohammedan, by occupation Contractor and Proprietor Jamshedpur and Star Talkies, Jamshedpur, residing at Sakchi, police station Sakchi in Town Jamshedpur, district Singhbhum, (2) Manik Homi, son of late Homi Engineer, by caste Parsee, by occupation zamindar of Mango, residing at Mango, police station Sakchi, district Singhbhum, Stand surety for the amount of Rs. 25,000 only each and bind ourselves to the Government of Bihar of which we bind ourselves, our heirs, executors and successors firmly for payment of Rs. 50,000 only in case Mr. Ali Khan fails to furnish proof by the 1st December 1946 of his having taken all necessary steps for the filing of the appeal and to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly".
It is dated the 19th October, 1946.
As a result of the constitutional changes the jurisdiction of the Privy Council came to be transferred to the Federal Court by virtue of the Abolition of the Privy Council Juris 81 diction Act (Constituent Assembly Act V of 1949) which came into force on the 10th October, 1949.
As, from that date ("the appointed day") all appeals ' pending before the Judicial Committee of the Privy Council by virtue of section 6 stood transferred to the Federal Court.
Ali Khan 's appeal to the Privy Council thus got transferred to the Federal Court and in due course was heard by this Court.
This Court dismissed the appeal in November 1950.
In the meantime Ali Khan, the convicted person, who had gone to London to look after his appeal there, migrated to Pakistan and thus placed himself beyond the jurisdiction of the courts in India.
In December 1950 the Deputy Commissioner of Singhbhum issued notice to the sureties, the respondents, to produce Ali Khan within three days.
On their failure to do so, the Deputy Commissioner called upon the sureties to show cause why their bond should not be forfeited.
The sureties raised certain legal objections to the proceedings taken by the Deputy Commissioner.
They contended that he had no jurisdiction to initiate the proceedings.
The Deputy Commissioner postponed the decision of the preliminary objections and directed that all the points in controversy shall be heard and determined at the final hearing.
Against that order the respondents moved the Sessions Judge of Singhbhum who by his orders dated the 12th November, 1951 overruled their objections and held that the Deputy Commissioner had jurisdiction to initiate the proceedings.
It is not necessary to set out his reasons.
The respondents moved the High Court in revision against the orders aforesaid of the Sessions Judge.
A Division Bench of the High Court allowed the application holding that the Deputy Commissioner had no such jurisdiction as he purported to exercise in the matter of enforcing the terms of the surety bond against them.
Accordingly, the High Court quashed the proceedings before the Deputy Commissioner.
Hence this appeal by the State of Bihar.
From the terms of the surety bond quoted above it would appear that the sureties bound themselves for 11 82 payment of Rs. 50,000 "only in case Mr. Ali Khan fails. . . . . to surrender to the Deputy Commissioner of Singhbhum within three days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly".
In view of this clear provision in the bond the terms of which being penal in nature must be very strictly construed, it cannot be said that the contingencies contemplated by the parties has occurred.
There was no judgment or order of the Judicial Committee upholding either in part or in whole the sentence against Ali Khan.
As the terms of the bond so construed cannot be said to have been fulfilled, the penalty stipulated has not been incurred.
It must therefore be held that the proceedings taken against the respondents were entirely misconceived.
It was in these circumstances that we did not think it necessary to hear the appeal on its merits, that is to say, on the point of jurisdiction on which the case had been decided by the High Court.
It was contended by the Advocate General of Bihar who appeared in support of the appeal that in the events which had happened there could be no judgment or order of the Judicial Committee and that therefore the judgment of this Court, which by virtue of the constitutional changes had come by the jurisdiction vested in the Privy Council, should be deemed to be the judgment or order contemplated by the parties to the surety bond.
In our opinion, there is no substance in this contention, firstly, because there is no term in the bond to the effect that the surety would be bound by any judgment or order given by such other court as may succeed to the jurisdiction then vested in the Judicial Committee of the Privy Council to hear the appeal preferred by Ali Khan against his conviction by the courts in India: and secondly, because there is no room, while construing the penal clause of a surety bond, for the application of a legal fiction as suggested on behalf of the appellant.
The Government through their legal advisers were not 83 circumspect enough to insert any such alternative clause as would have given the judgment or order of, this Court the same effect as is contemplated by the terms of the surety bond quoted above.
The appeal must therefore be dismissed in limine.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
In a surety bond the sureties bound themselves for payment of Rs. 50,000 "only in case Mr. Ali Khan fails. . to surrender to the Deputy Commissioner of Singhbhum within three, days of the receipt of the notice of the order or judgment of the Judicial Committee if by the said order or judgment the sentence is upheld either partly or wholly".
As a result of the constitutional changes the jurisdiction of the Privy Council came to be transferred to the Federal Court, and eventually Ali Khan 's appeal to the Privy Council was heard and dismissed by the Federal Court.
Thereupon the Deputy Commissioner issued notice to the sureties to produce Ali Khan within three days.
Held, that the proceedings taken against the sureties were entirely misconceived as the penalty stipulated had not been incurred, in view of the terms of the bond set out above.
Provisions in a surety bond which are penal in nature must be very strictly construed and there is no room for the application of a legal fiction that the judgment of the Federal Court must be deemed to be the judgment or order contemplated by the parties to the surety bond.


judgement:
iminal Appeal No. 58 of 1970.
Appeal by special leave from the judgment and order dated the 3rd December, 1969 of the Orissa High Court in Criminal Revision No. 325 of 67.
N. C. Sikri, for the appellant.
section Chatterjee and R. N. Sachthey, for the respondent.
657 The Judgment of the Court was delivered by KHANNA, J.
Chittaranjan Das appellant was convicted by Magistrate First Class Cuttack under section 16(1) (a) of the (Act 37 of 1954) (hereinafter referred to as the Act) and was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 50,0 or in default to undergo rigorous imprisonment for a further period of six weeks.
Appeal filed by the appellant was, dismissed by the Addi tional Sessions Judge Cuttack.
The appellant then went up in revision to the High Court but his revision petition too was dismissed by the Orissa High Court.
The appellant thereafter filed the present appeal by special leave.
The case for the prosecution is that on July 17, 1965 Food Inspector Behera went to the stall of the accused in the Old Secretariat Compound Cuttack and found potato chops being fried by an employee of the accused in groundnut oil in a frying pan.
The Food Inspector disclosed his identity to the accused and after giving the requisite notice, he purchased 375 gms of the groundnut oil in which the potato chops were being fried.
After the oil was cooled, the Food Inspector divided it into three equal parts and poured each part of the oil in a clean bottle.
The bottles were then sealed.
One of the bottles was handed over to the accused.
Another bottle was sent to a public analyst.
The public analyst found on analysis the groundnut oil to be adulterated as it did not conform to the prescribed standard.
The Superintendent of Police, Vigilance thereafter gave written consent for the prosecution of the accused.
The accused was after that sent up for trial.
It may be stated that the date on which the, sample of groundnut oil was purchased by the Food Inspector from the accused has been mentioned in the Judgments of the trial magistrate as well as those of the Additional Sessions Judge and the High Court to be March 14, 1964.
This date was wrong because on reference to the record of the trial court, we find that the date on which the sample of the oil was purchased by the Food Inspector from the accused was July 17, 1965.
This mistake in any event does not affect the merits of the case.
The plea of the accused at the trial was that the sample of the oil had been taken not from the frying pan but from a tin wherein he had kept burnt oil for the purpose of using it as fuel.
The oil, according to the accused, was stored neither for sale nor for being used for frying food articles.
This plea of the accused was found by the trial court as well as by the learned Addition Session Judge to be false.
In the High Court it was not disputed on behalf of the accused that the groundnut oil purchased by the Food Inspector had been taken out of the frying Dan and that potato chops were being prepared with that oil.
One of the contentions which was raised on behalf of the accused before the High Court was that the sanction or consent given by the Superintendent of Police, Vigilance for the prosecution of the accused was not in conformity with section 20 of the Act as the authority 658 contemplated by that section must be in respect of each individual case and a general authority given to the Superintendent of Police to sanction prosecution was not legal.
The High Court rejected this contention as also some other contentions which had been raised on behalf of the accused.
In appeal before us, Mr. Sikri has at the outset submitted that there was non compliance with the provisions of section 10(7) of the Act as the Food Inspector did not call one or more persons to be present at the time he purchased the sample of groundnut oil from the accused.
In this respect we find that the judgment of the High Court shows that no such argument was advanced before the High Court.
This argument involves questions of fact and as the accused appellant failed to agitate it before the High Court, we have not permitted the appellant to agitate it before us in this Court.
The main contention which has been advanced in appeal before us on behalf of the appellant is that there was no valid consent to the prosecution of the accused appellant in accordance with sub section (1) of section 20 of the Act and, as such, the prosecution of the appellant was not in accordance with law.
To appreciate this contention it would be relevant to reproduce the material part of sub section (1) of section 20 of the Act, as it stood before its amendment by Act 49 of 1964.
It was as under: "No prosecution for an offence under this Act shall be instituted except by or with the written consent of the State Government or a local authority or a person authorised in this behalf by the State Government or a local authority. ' On December 16, 1964 a notification was issued by the Orissa Government authorising, inter alia, the Superintendent of Police Cuttack Vigilance Division to give written consent for instituting prosecutionfor offences under the Act within the local limits of CuttackMunicipality.
The notification reads as under: HEALTH DEPARTMENT NOTIFICATION The 16th December, 1964 "No. 25485 H.
In exercise of the powers conferred by sub section (1) of section 20 of the (37 of 1954), the State Government do hereby authorise the following officers of the Political and Services (Vigilance) Department to give written consent for instituting prosecutions for offences under the said Act, within the local limits specified against each in 659 respect of cases detected by the Food Inspectors attached to the concerned Vigilance Divisions: Name of officer Local Limits Cuttack Municipality (1) Superintendent of Police '.
Cuttack Vigilance Division By order of the Governor C. VENKATARAMANI Joint Secretary to Government.
" The was amended by Act 49 of 1964 with effect from March 1, 1965.
One of the amendments made by the amending Act was in section 20 of the Act.
As a result of amendment, the material part of sub section (1) of section 20 reads as under : "section 20 (1) : No prosecution for an offence under this Act shall be instituted except by, or with the written consent of the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority;" The contention which has been raised on behalf of the appellant is that while it is permissible under section 20 of the Act, as it stands after the amendment made by Act 49 of 1964, to issue a general notification authorising a person to give written consent under the above provision of law, such a course was not permissible under section 20, as it stood before the above amendment.
It was, according to the learned counsel, essential under section 20, as it stood before the amendment, that the authority should be in respect of some specified individual offence.
As notification dated December 16, 1964 was issued before Act 37 of 1954 was amended by Act 49 of 1964 and as the said notification gave a general authority to the Superintendent of Police, Vigilance to give consent for instituting prosecutions for offenses under the Act committed within the local limits of Cuttack Municipality, the said notification, it is urged was not in accordance with law.
As against the above, Mr. Chatterjee on behalf of the State has argued that there is no infirmity in the notification dated December 16, 1964 and such a notification could have been validly issued under section 20 of.
the Act, as it stood before the amendment.
In our opinion there is force in the submission of Mr. Chatterjee.
It would appear from what has been stated above that the short question which arises for consideration is whether it is permissible for the State Government or local authority under section 20, as it stood before the amendment, to give a general authority to a person to give consent to the institution of prosecutions for offenses under the Act without mentioning a specified individual offence.
We have reproduced 660 above section 20, as it stood before the amendment, and we find nothing in its language which makes it imperative to specify a particular offence in the order authorising a person to give consent to the institution of prosecution.
The words "in this behalf" hi the above provision, to which our attention his been invited, indicate that the authority ' conferred by the State Government or local authority upon a person should relate to the giving of written consent for institution of prosecutions for offenses under the Act.
It is difficult to spell out an inference from those words that the authority conferred upon a person under the above provision cannot be a general authority in respect of offenses under the Act but must relate to some specified individual offence.
If the interpretation sought to be placed upon the words "in this behalf" on behalf of the appellant were to be accepted, in such an event no general authority can be conferred even under sub section (1) of section 20, as amended by Act 49 of 1964, because even the amended section contains those words.
The words "by general or special order" in the amended section in that event would become meaningless and lose all significance.
It is, indeed, not disputed that under the amended section a general authority can be conferred upon a person for giving consent to the institution of prosecutions for offenses under the Act.
The words "in this behalf" in sub section (1) of section 20, as it existed before the amendment, as well as after the amendment must obviously carry the same meaning.
If those words in the amended section do not postulate that the authority conferred by the State Government or local authority should have reference to a specified individual offence committed by a particular accused, we fail to understand as to how those words as used in the section before the amendment would carry a different connotation.
Perusal of sub section (1) of section 20 of the Act, as it existed before the amendment, shows that the legislature had two fold object in enacting this provision.
One object was to prevent institution of prosecutions for offenses under the Act unless written consent to the.
institution of such prosecutions was given by the State Government or a local authority or a person authorised in this behalf by the State Government or local authority .
The other object was to relieve the State Government or local authority of the necessity of applying it,,,, mind and dealing with each individual case of prosecution under the Act.
Provision was accordingly made to enable the State Government or local authority to assign the function of giving written con sent to some other person.
In case the authority conferred by the 661 State Government or local authority could not be general but had to relate to an individual offence, the very purpose of the latter part of sub section (1) of section 20 would be defeated, for it would in such an event become necessary for the State Government or local authority first to authorise a person to give written consent in respect of art individual case of prosecution and thereafter for the person authorised to pass another order for giving the written consent.
The result would be that what could be done in one step by the State Government or local authority by straightaway giving its written consent would have to be done in two steps.
It is difficult to accede to the contention that the above provision instead of simplifying the matter was intended to make it needlessly more cumbersome.
The change made in section 20 by Act 49 of 1964 has now put the thing beyond any, pale of controversy.
Even without the change made in the section the authority conferred by the State Government or local authority upon a person for giving the consent contemplated by the section, in our opinion, could be of general nature and it was not essential that the order authorising the person should have mentioned specified individual offenses.
The amendment made in this section had the effect of making more clear what was already contemplated by the section.
The Madras High Court in the case of Corporation of Madras vs Arumugham,(1 the Mysore High Court in the case of Laxman Sitaram Pai & Anr.
vs The State of Mysore(2) and the Andhra Pradesh High Court in the case of Public Prosecutor vs Thatha Rao &Ors.(8) have all taken the view that a general authorisation to launch, prosecutions under the Act is sufficient.
For the reasons stated above, we agree with the view taken in the above three cases.
We see no cogent ground to interfere with the sentence.
The appeal fails and is dismissed.
V. P. section Appeal dismissed, (1) A. I. R. 1966 Madras 194.

summary/full:
Section 20(1) of the Food Adulteration Act, 1954, as it stood before its amendment by Act 49 of 1964 provided that no prosecution for an offence under the Act shall be instituted except by or with the written consent of the State Government or a local authority or a person authorised in this behalf by the State Government or a local authority.
On the written consent of the Superintendent of Police, Vigilance, who was authorised to give written consent for instituting prosecutions for offences, under the Act, the appellant was prosecuted and convicted for an offence under section 16 (1) (a) of the Act.
It was contended on his behalf that while it was permissible under the section, after its amendment by Act 49 of 1964, to issue such general notification authorising a person to give written consent, under the section as it stood before the amendment, the authority should be in respect of a specified individual offence.
Dismissing the appeal, HELD : There is nothing in the language of the section which makes it imperative to specify a particular offence in the order authorising a person to give consent to the institution of prosecution.
The legislature had a two fold object in enacting section 20 (1) (a) to prevent institution of prosecutions for offences under the Act except with the written consent of the authorities mentioned in the section, and (b) to relieve the State Government or local authority of the necessity of applying its mind and dealing with each individual case of prosecution under the Act.
In case the authority conferred by the State Government or local authority could not be general but had to relate to an individual offence the very purpose of the section would be defeated, for then, it would become necessary for the State Government or local authority fast to authorise a person to give written consent in respect of an individual case and thereafter for the person authorised to give written consent, so that what could be done in one step by the State Government or local authority would have to be done in two steps.
The words 'in this behalf ' indicate that the authority conferred by the State Government or local authority upon a person should relate to the giving of written consent for the institution of prosecution for offences under the Act and not that the authority conferred must relate to some specified individual offence.
The amended section also contains those words, and must obviously carry the same meaning.
If the interpretation sought to be placed upon these words is accepted no general authority can be conferred even under section 20(1) even as amended , and the words 'by general or special order ' in the amended section would become meaningless and lose all significance.
The amendment bad only made more clear what was already contemplated by the section.
[659G 661B] Corporation of Madras vs Arumagham.
AJ.R. 1966.
Madras 194, Laxman Sitaram Pai & Anr.
vs The State of Mysore, A.I.R. and Public Prosecutor vs Thatha Rao & Ors., A.I.R. 1968 A.P. 17, approved.


judgement:
Appeal No. 1825 of 1967.
Appeal by special leave from the judgment and order dated the 18th May, 1967 of the Punjab and Haryana High Court in L.P.A. No. 158 of 1967.
Naunit Lal and Lalit Kohli, for the appellant O.P. Verma, for the respondent The Judgment of the Court was delivered by ALAGIRISWAMI, J.
The property in dispute in this appeal belonged to Wadhawa Singh, the father of the respondent.
After his death in the year 1933 his widow, who succeeded to the estate, made a gift of the property in favour of her daughter, the respondent, in.
April, 1933.
The appellants filed a suit as reversioners to the estate of Wadhawa Singh questioning the gift.
The suit was decreed and the decree was confirmed on appeal.
After coming into force of the on 17 6 1956 the widow again made a gift of the same lands to the respondent.
She died in 1963.
The appellants then filed the suit, out of which this appeal arises, for possession of the lands alleging that the second gift was void.
The Trial Court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as the High Court on second appeal.
There is no doubt that Wadhawa Singh 's widow had no right to male a gift of the property which she inherited from her husband in 1933 and the decree obtained by the appellants, who were reversioners to her husband 's estate would bind the respondent who was also a party, to that suit.
The question then is whether the coming into force, of the Hindu succession Act and the subsequent gift made by the widow in favour of the respondent make any difference.
Had not the widow made the gift to the respondent in 1933, she would have become an absolute owner of the property as a result of section 14 of the and the gift made by her subsequently in favour of the respondent could not have been questioned.
But having made the gift in 1933 she was not in possession of the property inherited by her from her husband and, therefore, did not become a full owner, with the result that the subsequent gift made by her in favour of the respondent was of no effect.
This point that unless the limited owner is in possession of the property section 14 does not apply has now been settled by decisions of this Court beyond dispute.
What then is the effect of the provision of section 8 of the in the circumstances of this case. 'The Punjab High Court in its decisions in Banso vs Charan Singh (AIR 1961 Punjab 45), and Kuldip Singh vs Karnail Singh (AIR 1961 Punjab 573), where the facts 530 were similar to the present case, has taken the view that when a widow dies after the coming into force of the the next heir to her husband is to be determined in accordance with the law prevailing on the date of the death of the widow and not in accordance with the law prevailing at the time of the death of her husband and held that the daughter succeeded in preference to the reversioners.
The Mysore High Court on the other hand in Kempiah vs Girigamma (AIR has held that on the death of the widow succession would be governed by the Hindu Law which was in force when the last mate holder actually died.
The Patna High Court in Renuka Bala vs Aswini Kumar (AIR 1961 Patna 498) was disposed to take a similar view though the case before it was concerned with succession to the property of a female under s.15.
The Madras High Court in Sampathkumari vs Lakshmi Ammal (AIR 1963 Madras 50) also took the view that in such circumstances section 8 of the would not apply.
But the case before that Court was one where two widows who had succeeded to the estate of their husband were in possession, and therefore, section 14 was applicable.
Lastly, we have the decision of this Court in Eramma vs Verrupanna In that case this Court after setting out the provisions of section 6 of the observed: "It is clear from the express language of the section that it applies only to coparcenary property of the mate, Hindu holder who dies after the commencement of the Act.
It is manifest that the language of section 8 must be construed in the context of section 6 of the Act.
We accordingly hold that the provisions of section 8 of the are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act section 8 of the Act will have no application.
" Interpreted literally this dicision would seem to accord with the decisions of all the other High Courts except the Punjab High Court.
But it should be noticed that the problem that we are faced within the present appeal and in the cases before the Punjab and Mysore High Courts did not arise before this Court on the earlier occasion.
The decisions of the Madras High Court and the Patna High Court are not directly in point.
In the case before this Court the two women were in possession of property whose last male holder, who had died before coming into force of the , was their step son.
They were not, therefore in legal possession of the properties of the last male holder.
The question that had to be decided was whether because of the coming into force of the they were entitled to succeed under section 8, and the further question whether section 14 would be attracted as they were actually in possession.
It was held that as they were not legally in possession s, 14 would not apply, It was in that context that it was said that where a male Hindu died before the; Act came into force i.e., where succession opened before the section 8 of the Act will have no application, The point that succession 531 might open not only when the male Hindu died but also subsequently again when a limited owner who succeeds him dies was not taken into account.
There was no need and no occasion to consider such a contingency in that case.
There was the further fact that the last male holder was succeeded on his death by persons who were then.
his nearest heirs and the property vested in them could not be divested by the coming into force subsequently thought this fact was not adverted to in the judgment.
This Court had, therefore.
also no occasion to consider the effect of the earlier decisions on the question as to what happens when a female limited owner, whether she is a widow, mother or daughter who succeeds the last male bolder, dies.
That position may now be considered.
It was authoritatively laid down by the Privy Council in its decision in Moniram Kolita vs Keri Kaliteni (ILR 5 Calcutta 776 at 789) that : "According to the Hindu Law, a widow who succeeds to the estate of her husband in default of male, issue, whether she succeeds by inheritance or survivorship as to which see the S hivagunga case (1) does not take a mere life estate in the property.
The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest.
Her estate is an anomalous one, and has been compared to that of a tenant in tail.
It would perhaps, be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband.
But whatever her estate is, it is clear that, until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs of the husband (2).
The succession does not open to the heirs of the husband until the termination of the widow 's estate.
Upon the termination of that estate the property descends to those who would have been the heirs at the husband if he had lived up 'to and died at the moment of her death (3).
" In the subsequent decision in Duni.
Chand vs Anar Kali (AIR the Privy Council observed: ". during the lifetime of the widow, the reversioners in Hindu Law have no vested interest in the estate but have a mere spes succession is or chance of succession, which is a purely contingent right which may or may not accrue,that the succession would not open out until the widow died, and that the person who would be the next reversioner at that time would succeed to the estate and the alteration in the rule of the Hindu Law brought about by the Act would then be in full force.
(1) 9 Moore 's I.A., 604.
(2) Id., 532 In the argument before their Lordships, reliance was placed upon the words "dying intestate" in the Act as connoting the future tense, but their Lordships agree with the 'view of the Lahore High Court in at p. 367, that the words are a description of the status of the deceased and have no reference and are not intended to have any reference to the time of the death of a Hindu male.
The expression merely m eans "in the case of intestacy of a Hindu male".
To place this interpretation on the Act is not to give a retrospective effect to its provisions, the materials point of time being the date when the ,.succession opens, namely, the death of the widow.
On the position of reversioners in Hindu Law, opinions have been expressed by this Board from time to time with which the views of the learned Chief Justice in 58 All.
1041(2) mentioned above, are in agreement.
It was said, for instance, that until the termination of the widow 's estate, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband; (3) at p. 604.
The succession does not open to the heirs of the husband until the termination of the widow 's estate.
Upon its termination, the property descends to those who would have been the heirs of the husband If he had lived uP to and died at the moment of her death 7 I. A. 115 (4) at 154.
" It would be noticed that the Privy Council interpreted the words "dying intestate" as merely meaning "in the case of intestacy of a Hindu male" and said that to place this interpretation on the Act is not to give retrospective effect to its provisions.
Those are the very words found in section 8.
These may be contrasted with the words of section 6 "where a male Hindu dies after the commencement of this Act.
" Here the reference is clearly to the time of the death.
In section 8 it is only to the fact of intestacy.
The material point of time, as pointed out by the Privy Council, is the date when the succession opens, namely, the death of the widow.
It is interesting to note that the Privy Council was interpreting the provisions of the Hindu Law of Inheritance (Amendment) Act, 1929 where the two contrasting expressions found in the are not found. ' The case for the interpretation of the words "dying intestate" under the is stronger.
The words "where a male Hindu dies after the commencement of this Act" in section 6 and their absence in section 8, are extremely significant.
Thus two propositions follow: (1) Succession opens on the death of the limited owner.
and (2) the law then in force would govern the succession.
Now if this proposition is correct, as we hold it is, that where a female heir succeeds to an estate, the person 'entitled to succeed on the basis as if the last male holder had lived up to and died at the (1) Mt. Rajpali Kunwer vs Surju Rai (58 All. 1041).
(2) Shakuntala Devi vs Kambsalya Devi (3) Katam Natchiar vs Rajah of Shiva Gunga , (4) Monirain Kolita vs Kerry Kolitang (7 IA 115: 533 death of the limited owner, succession to Wadhawa Singh 's estate in the present case opened when his widow died and it would have to, be decided on the basis that Wadhawa Singh had died in 1963 when his widow died.
In that case the succession to his estate would have to, be decided on the basis of s.8 of the .
The various High Courts which have held otherwise seem to have been oppre ssed by the feeling that this amounted to giving retrospective effect to section 8 of the whereas it is only prospective.
As the Privy Council pointed out it means no such thing.
The accepted position under the Hindu Law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day.
It would be unreasonable to hold that in such a circumstance the law as it existed at the time when the last male holder actually died should be given effect to.
If the person who is likely to succeed at the time of the limited owner 's death is not, as happens very often, likely to be the person who would have succeeded if the limited owner had not intervened, there is nothing unreasonable in holding that the law as to the person who is entitled to succeed on the limited owner 's death should be the law then in force and not the law in force at the time of the last full owner 's death.
The Madras High Court thought that the decision of the Privy Council in Duni Chand vs Anar Kali (supra) was based upon a legal fiction and that fiction cannot be given effect to except for a limited purpose.
The Mysore High Court also thought that the death referred to in section is actual death and not fictional death.
In East end Dwellings Co., Ltd. vs Finsbury Borough Council 132) lord Asquith of Bishopstone observed :.
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so,. also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.
One of those in this case is emancipation from the 1939 level of rents.
The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs".
This observation was cited with approval by this Court in Venkatachalam vs Bombay Dyeing & Mfg. Co., Ltd (1959 S.C.R. 703) If, therefore, succession opens and is to be decided on the basis of the last full owner dying on the date of death of the limited owner the inevitable corollary is that it is only the law in force at the time of the death of the limited owner that should govern the case.
To hold that the old Hindu Law applies to such a case is to allow your imagination to boggle.
In the case decided by the Privy Council in Duni Chand vs Anar Kali (supra) if this principle had been applied the new heirs 534 introduced by the Hindu Law of inheritance (Amendment) Act, 1929 could not have then come in.
We are not impressed with the reasoning of the Patna High Court that because the change brought about by that Act is different from the change brought about by the a different conclusion follows.
We should consider that if even the limited change in the area of succession effected by the Hindu Law of Inheritance (Amendment) Act, 1929 is to be given effect to as the law applicable on the date of the death of the limited owner, it is all the more reason why the which makes a much more radical change in the Hindu Law should have similar application.
The Mysore High Court thought that the not being a mere declaratory Act, retrospective effect should not be given to it so as to impair existing rights and obligations.
But the reversioners ' right being a mere spes succession is there is no question of impairing existing rights by adopting the interpretation we place on section 8 apart from the fact that, as earlier pointed out, the interpretation does not amount to giving retrospective effect to section 8.
of course, if the property had already vested in a person under the ,old Hindu Law it cannot be divested.
We must also point out that the classes of cases where such a question is likely to arise is very limited.
Where a widow, mother or daughter was in possession of the estate on the coming into force of the she would become full owner under the provisions of the section 14 of the Act.
Even if a widow was in possession of the share belonging to her in the joint family estate tinder the pro visions of the Hindu Women 's Right to property Act, 1937, she would become a full owner under section 14.
In both those cases section 8 would have no operation.
It is only in rare cases, like the present, that the question is likely to arise at all and we can see no reason either in principle or on authority why the principle consistently followed under the earlier Hindu Law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day, should not apply even after coming into force of the Hindu ,Succession Act, Mr. Naunit Lal appearing for the appellant argued that the result ,of the decision of this Court in Eramma vs Verrupanna (supra) is that on the death of Wadhawa Singh 's widow it is the old Hindu Law that applied and therefore under the custom in force in Punjab under which a daughter was not entitled to succeed to the ancestral property of the father in preference to the reversioners should apply and the appellants are entitled to succeed.
There is no doubt about the position under the Customary Law of Punjab before coming into force of the .
In Rattigan 's Digest of the Customary Law ' published by the University Book Agency (14th Ed.), paragraph 23 at age 132 it is stated: " 23.(1) A daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default : (1) Of the heirs mentioned in the preceding paragraph and 535 (2) Of near male collaterals of her father, provided that a married daughter sometimes excludes near male collaterals, especially amongst Muhammadan tribes : (a) where she has married a near collateral descendant from the same common ancestor as her father; or (b) where she has, with her husband continuously lived with her father since her marriage; looking after his domestic wants, and assisting him in the management of his estate; or (c) where being married to a collateral of the father 's family, she has been appointed by her father as his heir.
(2) But in regard to the acquired property of her father,the daughter is preferred to collaterals.
" It is on the basis of this Customary Law that the reversioners succeeded in the suit filed by them questioning the gift made by the respondent 's mother to her.
There is no doubt that Rattigan 's work is an authoritative one on the subject of Customary Law in Punjab, This Court in Mahant Salig Ram vs Musammat Maya Devi at 1196) said : "Customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and non ancestral lands are stated in paragraph 23 (if Rattigan 's Digest of Customary Law.
it is categorically stated in sub paragraph (2) of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree.
Rattigan 's work has been accepted by the Privy Council as "a book of unquestioned authority in the Punjab".
Indeed the correctness of this paragraph was not disputed before this Court in Gopal Singh vs Ujagar Singhi (1).
It is not now open to the respondent to show whether any of the circumstances mentioned in sub paragraph (2) of paragraph 23 of Rattigan 's Digest of Customary Law is present here as the previous decision is resjudicata between the parties and in any case it has not been attempted to be shown in this case.
But in the view we have taken that it is section 8 of the that applies and not the Customary Law the appellants cannot succeed in this appeal.
In the result the appeal is dismissed.
The appellants will pay the respondent 's costs.
section B. W. Appeal dismissed.

summary/full:
The respondent 's father, W, who owned the suit property died in 1933.
His widow, who succeeded to the estate, gifted the property to her daughter, the respondent.
The appellants filed a suit as reversioners of W questioning the gift.
The "it 'as decreed and the decree was confirmed on appeal.
After coming into force of the on 17 6 1956, the widow again made a gift of the same, lands to the respondent.
She died in 1963.
The appellants then filed the suit, out of which this appeal arose, for possession of the lands.
alleging that the second gift was void.
The trial court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as in the High Court on second appeal.
On appeal by special leave to this Court, Dismissing the appeal, HELD (1) Following the decisions of the Privy Council in Moniram Kolita vs Keri Kolitani, I.L.R. 5 Calcutta 776 at 789 and Duni Chand vs Anar Kali, A.I.R. 1946 P.C. 173, (infra) the words "dying intestate in Sec.
8 of the Act must be interpreted as merely meaning "in the case of intestacy of a Hindu male" and to place this interpretation on the Act is not to give retrospective effect to its provisions.
The reference is only to the fact of 'intestacy.
The material point of time is the date when the succession opens, namely, the death of the widow.
Thus this propositions follow (i) Succession opens on the death of the limited owner, and (ii) the law then in force would govern the succession.
[532D G] Moniram Kolita vs Keri Kolitani, I.L.R. 5, Calcutta 776 789 and Duni Chand vs Anar Kali, A.I.R. 1946 P.C. 173, followed.
Eramma vs Verritpatina, , explained and distinguished.
Banso vs Charan Singh, A.I.R. 1961, Punjab 45 and Kuldip Sing vs Karnail Singh, A.I.R. 1961, Punjab, 573, approved.
Kempiah vs Giriganima, A.I.R. , overruled.
Renuka Bala vs Aswini Kumar A.I.R. 1961, Patna 498 and Sam pathkumari N. Lakshmi Ammal, A.I.R. 1963 Madras, 50, distinguished.
(ii)Succession to W 's estate in the present cage opened when his widow died and it would have to be decided on the basis that W died in 1963 when his widow died.
in that case succession to his estate would have to be decided on the basis of section 8 of the .
The accepted position under the Hindu law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day.
If, therefore, succession opens and is to be decided on the basis of the last full owner dying on the date of the death of the limited owner it is only the law in force at the time of the death of the limited owner that should govern the case.
To hold that the old Hindu law applies to such a case is to allow your imagination to boggle.
[533 A C, G H] Eastend Dwellings Co. Ltd. vs Finsbury Borough Council, , 132, per Lord Acsquit and Venka tachalam vs Bombay Dyeing & Mfg. Co. Ltd., ; , referred to.
The reversioners ' right being a mere spes successions there is no question of impairing existing rights by adopting the interpretation we place on section 8 apart from 529 the fact that it does not amount to giving retrospective operation to section 8.
Of course,, if the property had already vested in a person under the old Hindu Law, it cannot be divested.
We can see no reason either in principle or on authority why the principle consistently followed under the earlier Hindu law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day, should not apply even after coming into force of the Act.
In the view we have taken it is section 8 of the Act that applies and not the Customary Law.[534C D,E F.535G]


judgement:
minal Appeal No. 226 of 1970.
Appeal by special leave from the judgment and order dated the 14th April, 1970, of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal appeal No. 260 of 1968.
A. N. Mulla and O. N. Mohindroo, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
Barati (26) was tried in the court of Sessions Judge Sitapur for an offence under section 302 Indian Penal Code for causing the death of Lekhai (45).
Prabhu (24) and Ram Lal (24) were also tried along with Barati for offence under section 302 read with section 109 Indian Penal Code for having abetted the commission of the offence of murder.
Learned Sessions Judge acquitted all the three accused.
On appeal filed by the State the Allahabad High Court convicted Barati under section 302 Indian Penal Code and sentenced him to undergo imprisonment for life.
The appeal against Prabbu and Ram Lal was dismissed.
Barati then came up in appeal to this Court by special leave.
The prosecution case is that the relations between Lekhai deceased and his younger brother Pancham (PW 3) on the one side and Barati accused on the other were strained.
All three of them belong to village Nasirapur in district Sitapur.
Dispute had been going on between them regarding the construction of a wall.
About a couple of months before the present occurrence, Baratia effected an opening in the western wall of his house which gave rise to an apprehension that he intended to encroach upon the land belonging to Lekhai and Pancham.
Pancham made complaint dated May, 27, 1967 to the Judicial Panchayat in that connection.
The said complaint was still pending when the present occurrence took place.
About three days prior to the present occurrence Barati and Prabhu accused after arming themselves with lathis went to the door of Lekhai and Threatened to assault him.
Mainku PW intervened and persuaded Barati and Prabhu to go away.
On the evening of July 30, 1967, it is stated, Lekhai deceased after taking his meals was lying on a cot in an open space near his baithak.
Lekhai 's son Nagai (PW 1) and brother Pancham (PW 3) slept nearby on another cot.
A lighted lantern was hanging nearby.
At about 10.30 p.m. the three accused came there.
On hearing some sound, Lekhai opened his eyes.
Lekhai saw the three accused standing near the cot.
Ram Lal accused is the brother in law of Barati accused.
At the instigation of Ram Lal and Prabhu, it is stated, Barati accused, who was holding a bottle, poured acid over Lekhai.
Lekhai cried aloud and shouted that he was being killed.
On hearing the cries of Lekhai, his son Nagai and brother Pancham got up from their cot and saw the three accused standing there.
Barati accused was holding a bottle in his hand.
Nagai and Pancham too raised alarm whereupon 572 Bhallu (PW 2) and Jeorakhan (PW 4), whose houses are nearby, also arrived there with lighted torches and lathis in their hands.
On seeing them, the three accused ran into the house of Barati and closed the door from inside.
Nagai and others chased the accused and knocked at the door of the house but the accused did not open the door.
Nagai, Pancham, Bhallu and Jeorakhan were told by Lekhai that Barati accused had poured acid over him.
Badri Pradhan (PW 6) also came there and on his enquiry he too was told by Lekhai that Barati accused had poured acid over him.
Nagai, Pancham, Bhallu, Jeorakhan and Badri Pradhan PWs saw acid present all over the body of Lekhai deceased.
His clothes too were stained with acid.
At the suggestion of Badri, Lekhai was then taken in a bullock cart by Nagai and Pancham PWs to police station Sandhana at a distance of two miles from the place of occurrence.
Report Ka 1 was lodged at the police station at 2.30 a.m. by Lekhai.
In that report Lekhai stated that Barati accused had poured acid over his body.
The names of Nagai, Pancham, Bhallu and Jeorakhan were also mentioned in the first information report and it was stated that they had seen the accused present near his cot when Lekhai had raised alarm.
The motive for the assault, as given earlier, was also given.
After recording the first information report, Sub Inspector Asrarul Haq (PW 18) recorded statement Ka 22 of Lekhai.
In that statement Lekhai reiterated what he had stated in the first information report.
The Sub Inspector thereafter recorded the statements of Nagai and Bhallu PWs.
Lekhai was then sent to Misrikh dispensary at a distance of about 12 miles from the place of occurrence.
The party arrived at the dispensary at about 3 p.m. on July 31, 1967.
Soon thereafter Dr. Bisht (PW 5) recorded statement Ka II at 3 p.m. of Lekhai deceased.
Lekhai was at that time in a fit condition to make statement.
In that statement also Lekhai stated that Barati accused had poured acid over his body and as such had caused him injuries.
The injuries of Lekhai were examined by Dr. Bisht at 3 .15 p.m.
As the condition of Lekhai was serious, Dr. Bisht referred the case of Lekhai to District Hospital Sitapur.
Lekhai was then taken to the District Hospital Sitapur.
The party arrived in the hospital at about 4 45 p.m. the same day but about an hour thereafter at 5 .45 p.m.
Lekhai succumbed to the injuries.
Post mortem examination on the body of Lekhai was performed by Dr. N. Verma on the following day, i.e. August 1, 1967, at 4 pm.
Barati accused absconded after the occurrence.
Proceedings under sections, 87 and 88 of the Code of Criminal Procedure were initiated against him.
Barati surrendered in court on August 17, 1967.
He was thereafter put under arrest.
At the trial the plea of Barati accused, with whom we are concerned was denial simpliciter.
No evidence was produced in defence.
The trial court did not place reliance upon the evidence of Nagai, Pancham, Bhallu and Jeorakhan PWs.
The reason which weighed 573 with the trial court was that the witnesses were related to the deceased.
The evidence with regard to the dying declarations of the deceased was not accepted by the trial court.
The deceased, in the opinion of the trial court, became unconscious and as such was not in a position to lodge first information report Ka 1 or to make statement Ka 22.
The trial court also rejected dying declaration Ka II recorded by Dr. Bisht as it found the language of the same to be chaste and the same, in the opinion of the trial court, was not expected of a rustic living in a village.
In the result the accused were acquitted.
On appeal the learned Judges of the High Court accepted the evidence of Nagai, Pancham, Bhallu and Jeorakhan PWs as well as the evidence about the dying declarations made by the deceased.
The High Court also took note of the fact that Barati accused had a motive to assault the deceased and that when witnesses knocked at his door, he instead of professing his innocence, did not open the door.
Reference was also made to the fact that Barati accused had absconded after the occurrence.
In the result the appeal against Barati accused was accepted, and he was convicted and sentenced as above.
So far as Ram Lal and Prabhu accused were concerned, the High Court gave them the benefit of doubt and as such acquitted them.
In appeal before us Mr. Mulla on behalf of the appellant has urged that the High Court should not have reversed the judgment of acquittal of the trial court in respect of the appellant.
According to the learned counsel, the evidence relied upon by the High Court is not satisfactory and as such the conviction of the appellant cannot be based upon it.
In reply Mr. Rana has canvassed for the correctness of the view of the High Court.
It cannot be disputed that acid was poured on Lekhai deceased on the night of July 30, 1967 as a result of which he died.
Dr. Bisht, who examined Lekhai deceased on July 31, 1967 at 3 .15 p.m., found the following injuries on his person : "Burnt area of black colour on the left side of the face, on both sides of the neck, on the front part of the whole chest, on the right arm, right fore arm, and back part of right palm on the front and back part of both shoulders.
" Dr. Bisht also found black marks caused by running down of fluid on the front and outer part of abdomen and on the vertebral column.
Burnt areas of black colour were found by the doctor on the front and inner part of right thigh, inner and upper Part of right leg and inner part of the left thigh in the middle.
The injuries, in the opinion of the doctor, were previous and were caused by acid in liquid form.
The injuries were about 12 to 24 hours old.
Lekhai died at 5 .45 p.m. on July 31, 1907.
Dr N. Verma who performed the post mortem examination on the body of Lekhai on August 1, 1967 at 4 p.m. found the following injuries on the body 574 "1.Corrosive burns area.
There were marks of acid,on the left side of the face, in front and both sides of the neck, in front of the chest and in front, up and back side of the shoulders ; upper side and in front of the right arm and in front and in several places of the other arm.
In front and outer side of right thigh and in front inside of left shoulder, in front and down part of the right leg and both sides of the back.
The marks on account of pouring of acid existed on the left side of the face, and also existed on both sides of the chest, abdomen, and shoulders, the inner part of the skin and flesh of front of the chest, neck, side and several places became discolored by the action of acid.
Injuries were on account of corrosion burns which were upto III, IV, V degree.
" On internal inspection the brain and thin skin cover were found to be congested.
The same was the condition of the longs, larynx, trachea and bones.
The heart was full of blood, while the stomach was empty.
Death, in the opinion of the doctor, was due to shock as a result of the pouring of acid.
The injuries were sufficient to cause death in the ordinary course of nature.
The case of the prosecution is that it was Barati accused who poured acid over Lekhai deceased as a result of which Lekhai died.
In support of this allegation, the prosecution has relied, in the first instance, upon the four dying declarations of Lekhai deceased.
The first dying declaration of the deceased was the one made by him to Nagai, Pancham, Bhallu and Jeorakhan immediately after the occurrence.
It is in the evidence of these witnesses that they were told immediately after the occurrence that it was Barati accused who, had poured acid over him.
There appears to be no cogent reason to disbelieve the above evidence of the witnesses.
The trial court, in our opinion, was wholly in error in rejecting the evidence of these witnesses on the ground that they were related to the deceased.
Close relatives of the deceased would normally be most reluctant to spare the real assailant and falsely mention the name of another person as the one responsible for causing injuries to the deceased.
Lekhai deceased also told Badri Pradhan (PW 6) who arrived at the place of occurrence on hearing alarm that Barati accused had poured acid over him.
No cogent ground has been shown as to Why the above evidence of Badri Pradhan be not accepted.
All that was suggested on behalf of the accused was that Badri was inimical to Prabhu accused.
If that was so, no reason has been shown as to why Badri should attribute the major part in the assault on the deceased to Barati accused and not to Prabhu.
It is also plain that Lekhai deceased must have seen as to who was the person who poured acid over his body.
The moment the acid first came in contact with his body, the immediate reaction of Lekhai, as of any other person, would be to see as to who was responsible for all that.
Even if the assailant took only a few seconds to pour acid over the body of Lekhai, the latter would not have failed to fix the identity of the assailant during that short time.
It is significant that Barati was no stranger to Lekhai.
They were neighbours and were well known to each other.
it is, in our opinion, most difficult 575 to believe that Lekhai would spare his real assailant and falsely mention the name of Barati as one who had poured acid over his body.
Apart from the oral dying declarations made by the deceased to Nagai, Pancham, Bhallu, Jeorakhan and Badri Pradhan PWs, we have the evidence of Sub Inspector Asrarul Haq that the deceased lodged report Ka 1 at the police station at 2.30 a.m. when the deceased was brought there in a cart.
The deceased stated in that report that Barati accused had poured acid over him and thus caused him injuries.
Sub Inspector, Asrarul Haq thereafter recorded statement Ka 22 of Lekhai, deceased.
In that statement also the deceased reiterated that it was Barati accused who had poured acid over him and thus caused him injuries.
We see no particular reason to disbelieve the evidence adduced by the prosecution regarding the dying declaration of Lekhai deceased contained in report Ka 1 and statement Ka 22.
The trial court reacted the above evidence because it was of the view that Lekhai deceased, as mentioned by him in dying declaration Ka 1 made to Dr. Bisht, had become unconscious after the occurrence.
There was, however, nothing in that statement to indicate that Lekhai remained unconscious for a long time and as such was not in a position to lodge the first information report at the police station or make statement Ka 22 to Sub Inspector Asrarul Haq.
The view taken by the trial court in rejecting the above evidence, in our opinion, was clearly erroneous '.
Another dying declaration upon which prosecution has placed reliance was Ka 11 recorded by Dr. Bisht in Misrikh dispensary According to Dr. Bisht, Lekhai was in possession of his senses when he made statement Ka 11.
Dr. Bisht is a wholly disinterested and respectable witness and there appears no reason as to why his statement regarding the dying declaration Ka 11 be not accepted.
Dying declaration Ka 11 is a brief document consisting of about 9 or 10 lines.
The statement incorporated in dying declaration Ka 11 is very simple and relates to the pouring of acid by Barati accused on Lekhai deceased.
The fact that the language used in it is rather chaste would not go to show that the said statement could not have been made by Lekhai deceased.
The statement of Lekhai in exhibit Ka 11 that Barati accused had poured the liquid from a bottle on him clearly establishes the guilt of Barati accused.
Reference was made on behalf of the accused to the fact that statement Ka 11 was sent by Dr. Bisht to Additional District Magistrate not immediately after recording that statement but on the third day.
According to Dr. Bisht, the delay took place because of rush of work.
No adverse inference, in our opinion, can be drawn from the fact that the dying declaration was sent by Dr. Bisht on the third day after recording the same.
The dying declaration bears the thumb impression of Lekhai deceased.
Lekhai was sent from Misrikh dispensary soon after the dying declaration was recorded and his injuries were examined.
There could be no possibility of any such dying declaration being prepared subsequently.
576 Mr. Mulla has pointed out that the language used in dying declaration Kall is chaste while that used in report Ka 1 as well as in statement Ka 22 has some words which are spoken by villagers.
This fact, in our opinion, is not of much significance because there is nothing abnormal or unusual in the same person using colloquial language while talking to one person and using refined language while talking to another person.
Apart from the dying declaration& of the deceased, we have the evidence of Nagai, Pancham, Bhallu and Jeorakhan PWs that they saw Barati accused with a bottle in his hand near the cot of the deceased when those witnesses got up on hearing alarm.
The High Court accepted the evidence of these witnesses and we see no particular reason to take a different view.
As mentioned earlier, the reason given by the trial court in rejecting the evidence of these witnesses was wholly erroneous.
It is well settled that the High Court in an appeal under section 417 of the Code of Criminal Procedure has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be ' reversed.
No limitation should be placed upon that power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any real and reasonable doubt and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses.
Keeping the above principles in view as well as the fact that the approach of the trial court was clearly unreasonable, the High Court, in our opinion, was fully justified in setting aside the acquittal of Barati accused.
There is, in our opinion, no force in the appeal which fails and is dismissed.
P.B.R. Appeal dismissed.

summary/full:
The appellant and his companions were charged with an offence under section 302 I.P.C. for causing the death of the deceased by pouring acid on him when he was sleeping on his cot on the night of the occurrence.
After recording the first information report the police sub inspector recorded the statement of the deceased and at the dispensary the doctor recorded the statement of the deceased, in both of which he stated that the appellant poured acid over his body and caused injuries to him.
The deceased succumbed to his injuries.
Disbelieving the prosecution evidence the trial court acquitted him.
The High Court on the other hand accepted the evidence of all the prosecution witnesses and convicted and sentenced the appellant to life imprisonment but acquitted the remaining two accused.
In appeal to this Court it was contended that the High Court should not have reversed the judgment of the trial court and the evidence relied upon by the High Court was not satisfactory.
Dismissing the appeal.
HELD : that the approach of the trial court was clearly unreasonable and the High Court was fully justified in setting.aside the acquittal of the.
appellant.
It is well settled that in an appeal under section 417 of the Code of Criminal Procedure the Court has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed.
No limitation should be placed upon that power unless it be found expressly stated in the Code, but in exercising the power conflict by the Code before reaching its conclusion upon facts the High Court should give proper weight and consideration to such matters as (1) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any real and reasonable doubt and (4) the slowness of an appellate court in disturbing the finding of fact arrived at by a judge who had the advantage of seeing the witnesses.
[576 D F] In the instant case there was no doubt that the deceased died as a result of acid bums.
There was no cogent reason to disbelieve the evidence of the prosecution witnesses.
The trial court was wrong in rejecting evidence of these witnesses on the ground that they were related to the deceased.! Close relatives of the deceased would normally be most reluctant to spare the real assailant and falsely mention the name of another person as the one responsible for causing injuries to the deceased.
The deceased would not spare his real assailant ' and falsely mention the name of the appellant as one who poured acid over his body.
There was no reason to discard the dying declaration made by the appellant to the police sub inspector, The trial Court was wrong in rejecting the dying declaration to the police (F.I.R.) on the ground that the deceased had stated to the doctor that he had become unconscious after the occurrence.
There was nothing in the statement recorded by the doctor to indicate that the deceased remained unconscious for.
a long time and as such was not in position to lodge the F.I.R. The fact that the language used in the dying declaration made to the doctor was rather chaste would not go to show that the said statement could not have been made by the deceased.
As to the language used in the dying declaration there is nothing abnormal or unusual in the same person using colloquial language while talking to one person and using refined language while talking to another person.
[574 E F ; 575D; 576A] 571