Monday, October 11, 2010

State Of Uttaranchal vs Sandeep Kumar Singh & Ors.

Constitution of India, 1950, Art. 141 – Principle of Obiter Dicta – Two Judge Bench cannot hold that the decision of a three Judge Bench rendered following the Constitution Bench judgments was per incuriam - Law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength , bench of lesser Coram cannot disagree or dissent from the view of the law taken by a Bench of larger Coram, in case of doubt all that the Bench of lesser Coram can only invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger Coram than the Bench whose decision has come up for consideration - Only a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a Coram larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

Supreme Court of India

CIVIL APPEAL NO. 4494 OF 2006
Hon'ble Judge(s): B S Reddy, S S Nijjar
Date of Judgment: 7 October, 2010

State Of Uttaranchal vs Sandeep Kumar Singh & Ors.

O R D E R
1. The question which arises for consideration in the present appeal is as to whether a person belonging to a scheduled caste in relation to a particular State would be entitled or not, to the benefits or concessions allowed to scheduled caste candidate in the matter of employment, in any other State?

2. G.B. Pant University of Agriculture & Technology, Pant Nagar, Uttaranchal issued employment notice inviting applications from candidates all over the country for various posts mentioned therein. The notification, inter alia, porivded:
"The vacancies are advertised under the reservation roster supplied by the Uttaranchal Government."

3. Respondents applied for post of Assistant Professor in different departments as scheduled caste reserved category candidates. In support of their caste, certificates issued by the States of U.P, Bihar and Tripura were produced. Respondents were successful in the selection conducted by the University. Appellant, State of Uttaranchal, wrote a letter to the Vice-Chancellor of the University inter alia stating that reservations in the appointment have been made in violation of reservation policy of the State and all the appointments made by the University in violation of the reservation policy of the State were accordingly cancelled. University, accordingly, withdrew the appointment letters of the respondents under the instructions of the State Government on the ground that they do not belong to scheduled caste category of State of Uttaranchal. The respondents filed writ petitions in the High Court challenging the termination letter. The High Court allowed the writ petitions. The High Court without even adverting to the Constitution Bench decisions in Marri Chandra Shekhar Rao vs. Dean, Seth G. S. Medical College & Ors.1 and Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra & Anr. Vs. Union of India & Anr.2 allowed the writ petitions filed by the respondents and accordingly quashed the termination orders.

4. In Marri Chandra Shekhar Rao, a Constitution Bench of this Court while interpreting Article 341 as well as Article 342 observed:

"...that the expression `for the purposes of this Constitution' in Article 341 as well as in Article 342 do imply that the Scheduled Caste and the Scheduled Tribes so specified would be entitled to enjoy all the constitutional rights that are enjoyable by all the citizens as such. Constitutional right, e.g., it has been argued that right to migration or right to move from 1 (1990) 3 SCC 130 2 (1994) 5 SCC 244 one part to another is a right given to all -- to Scheduled Castes or Tribes and to non- scheduled castes or tribes. But when a Scheduled Caste or Tribe migrates, there is no inhibition in migrating but when he migrates, he does not and cannot carry any special rights or privileges attributed to him or granted to him in the original State specified for that State or area or part thereof. If that right is not given in the migrated State it does not interfere with his constitutional right of equality or of migration or of carrying on his trade, business or profession. Neither Article 14, 16, 19 nor Article 21 is denuded by migration but he must enjoy those rights in accordance with the law if they are otherwise followed in the place where he migrates. There should be harmonious construction; harmonious in the sense that both parts or all parts of a constitutional provision should be so read that one part does not become nugatory to the other or denuded to the other but all parts must be read in the context in which these are used. It was contended that the only way in which the fundamental rights of the petitioner under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) could be given effect to is by construing Article 342 in a manner by which a member of a Scheduled Tribe gets the benefit of that status for the purposes of the Constitution throughout the territory of India. It was submitted that the words "for the purposes of this Constitution" must be given full effect. There is no dispute about that. The words "for the purposes of this Constitution" must mean that a Scheduled Caste so designated must have right under Articles 14, 19(1)(d), 19(1)(e) and 19(1)(f) inasmuch as these are applicable to him in his area where he migrates or where he goes. The expression "in relation to that State" would become nugatory if in all States the special privileges or the rights granted to Scheduled Castes or Scheduled Tribes are carried forward. It will also be inconsistent with the whole purpose of the scheme of reservation. In Andhra Pradesh, a Scheduled Caste or a Scheduled Tribe may require protection because a boy or a child who grows in that area is inhibited or is at disadvantage. In Maharashtra that caste or that tribe may not be so inhibited but other castes or tribes might be. If a boy or a child goes to that atmosphere of Maharashtra as a young boy or a child and goes in a completely different atmosphere or Maharashtra where this inhibition or this disadvantage is not there, then he cannot be said to have that reservation which will denude the children or the people of Maharashtra belonging to any segment of that State who may still require that protection. After all, it has to be borne in mind that the protection is necessary for the disadvantaged castes or tribes of Maharashtra as well as disadvantaged castes or tribes of Andhra Pradesh. Thus, balancing must be done as between those who need protection and those who need no protection, i.e., who belong to advantaged castes or tribes and who do not. Treating the determination under Articles 341 and 342 of the Constitution to be valid for all over the country would be in negation to the very purpose and scheme and language of Article 341 read with Article 15(4) of the Constitution."

"...But having regard to the purpose, it appears to us that harmonious construction enjoins that we should give to each expression --"in relation to that State" or "for the purposes of this Constitution" -- its full meaning and give their full effect. This must be so construed that one must not negate the other. The construction that reservation made in respect of the Scheduled Caste or Tribe of that State is so determined to be entitled to all the privileges and rights under the Constitution in that State would be the most correct way of reading, consistent with the language, purpose and scheme of the Constitution. Otherwise, one has to bear in mind that if reservations to those who are treated as Scheduled Caste or Tribe in Andhra Pradesh are also given to a boy or a girl who migrates and gets deducted (sic inducted) in the State of Maharashtra or other States where that caste or tribe is not treated as Scheduled Caste or Scheduled Tribe then either reservation will have the effect of depriving the percentage to the member of that caste or tribe in Maharashtra who would be entitled to protection or it would denude the other non-Scheduled Castes or non- Scheduled Tribes in Maharashtra to the proportion that they are entitled to. This cannot be logical or correct result designed by the Constitution."

5. In Action Committee on Issue of Caste Certificate to Scheduled Castes & Scheduled Tribes in the State of Maharashtra & Anr., it is held:

"On a plain reading of clause (1) of Articles 341 and 342 it is manifest that the power of the President is limited to specifying the castes or tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under clause (1), shall not be varied by any subsequent notification. What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified." It is further held:

"We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the rights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution."

6. The latter Constitution Bench reiterated the view taken by former Constitution Bench in Marri Chandra Shekhar Rao case.

7. In S. Pushpa & Ors. vs. Sivachanmugavelu & ors.3, a three Judge Bench after referring to Marri Chandra Shekhar Rao & Action Committee cases held:

"Part XVI of the Constitution deals with special provisions relating to certain classes and contains Articles 330 to 341. Articles 330 and 332 make provision for reservation of seats in the House of the People and Legislative Assemblies of the States respectively, for Scheduled Castes and Scheduled Tribes. Similar provisions have been made for Anglo- Indian community in Articles 331 and 333. Article 338 provides that there will be a Commission for the Scheduled Castes to be known as National Commission for the Scheduled Castes and it also provides for its composition, powers and duties. Clause (2) of Article 330 provides that the number of seats 3 (2005) 3 SCC 1 reserved in the States or Union Territories for Scheduled Castes or Scheduled Tribes shall bear, as nearly as may be, the same proportion to the number of seats allotted to that State or Union Territory in the House of the People as the population of the Scheduled Castes in the State or Union Territory or of the Scheduled Tribes in the State or Union Territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the State or Union Territory. Similar provision for reservation of seats in favour of SC/ST in the Legislative Assembly of any State is contained in clause (3) of Article 332 of the Constitution. Therefore, in order to ascertain the number of seats which have to be reserved for Scheduled Castes or Scheduled Tribes in the House of the People or in the Legislative Assembly, it is absolutely essential to ascertain precisely the population of the Scheduled Castes or Scheduled Tribes in the State or Union Territory. A fortiori, for the purpose of identification, it becomes equally important to know who would be deemed to be Scheduled Caste in relation to that State or Union Territory. This exercise has to be done strictly in accordance with the Presidential Order and a migrant Scheduled Caste of another State cannot be taken into consideration otherwise it may affect the number of seats which have to be reserved in the House of the People or Legislative Assembly. Though, a migrant SC/ST person of another State may not be deemed to be so within the meaning of Articles 341 and 342 after migration to another State but it does not mean that he ceases to be an SC/ST altogether and becomes a member of a forward caste.

Clauses (1) and (2) of Article 16 guarantee equality of opportunity to all citizens in the matter of appointment to any office or of any other employment under the State. Clauses (3) to (5), however, lay down several exceptions to the above rule of equal opportunity. Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservation in the matter of appointments in favour of "backward classes of citizens" which in its opinion are not adequately represented either numerically or qualitatively in services of the State. But it confers no constitutional right upon the members of the backward classes to claim reservation. Article 16(4) is not controlled by a Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution in the sense that reservation in the matter of appointment on posts may be made in a State or Union Territory only for such Scheduled Castes and Scheduled Tribes which are mentioned in the Schedule appended to the Presidential Order for that particular State or Union Territory. This article does not say that only such Scheduled Castes and Scheduled Tribes which are mentioned in the Presidential Order issued for a particular State alone would be recognised as backward classes of citizens and none else. If a State or Union Territory makes a provision whereunder the benefit of reservation is extended only to such Scheduled Castes or Scheduled Tribes which are recognised as such in relation to that State or Union Territory then such a provision would be perfectly valid. However, there would be no infraction of clause (4) of Article 16 if a Union Territory by virtue of its peculiar position being governed by the President as laid down in Article 239 extends the benefit of reservation even to such migrant Scheduled Castes or Scheduled Tribes who are not mentioned in the Schedule to the Presidential Order issued for such Union Territory. The UT of Pondicherry having adopted a policy of the Central Government whereunder all Scheduled Castes or Scheduled Tribes, irrespective of their State are eligible for posts which are reserved for SC/ST candidates, no legal infirmity can be ascribed to such a policy and the same cannot be held to be contrary to any provision of law."

A two Judge Bench in Subhash Chandra & Anr. vs. Delhi Subordinate Services Selection Board & Ors.4 held that the dicta in S. Pushpa case is an obiter and does not lay down any binding ratio. We may notice that a three Judge Bench in S. Pushpa case relied on Marri Chandra Shekhar Rao & Action Committee... cases and understood the ratio of those judgments in a particular manner. In our considered opinion, it was not open to a two Judge Bench to say that the decision of a three Judge Bench rendered following the Constitution Bench judgments to be per incuriam.

8. In Central Board of Dawoodi Bohra Community & Anr. vs. State of Maharashtra & Anr.5, a 4 (2009) 15 SCC 458  5 (2005) 2 SCCC 673 Constitution Bench of this Court in categorical terms held that the law laid down by the Supreme Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. A Bench of lesser Coram cannot disagree or dissent from the view of the law taken by a Bench of larger Coram. In case of doubt all that the Bench of lesser Coram can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger Coram than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a Coram larger than the one which pronounced the decision laying down the law the correctness of which is doubted.


9. In our view, a two Judge Bench of this Court could not have held the decision rendered by a three Judge Bench in S. Pushpa case to be obiter and per incuriam.

10. A very important question of law as to interpretation of Articles 16 (4), 341 and 342 arises for consideration in this appeal. Whether Presidential Order issued under Article 341(1) or Article 342(1) of the Constitution has any bearing on the State's action in making provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State? The extent and nature of interplay and interaction among Articles 16(4), 341(1) and 342(1) of the Constitution is required to be resolved.

11. For the aforesaid reasons, therefore, in our view, it would be appropriate that this case is placed before the Hon'ble the Chief Justice of India for constituting a Bench of appropriate strength. The registry is, accordingly, directed to place the papers before the Hon'ble the Chief Justice of India for appropriate directions.

Sunday, October 10, 2010

Arvind Kumar Mishra Vs.New India Assurance Co. Ltd. and Anr.

Motor Vehicles Act, 1988 Section 166 - Compensation -Whether multiplier specified in the Second Schedule should be taken for calculating compensation payable in a case falling under Section 166 - In Reshma Kumari's case, such question referred to a larger bench. Held, in view of few decisions of Apex Court that the Second Schedule has no application to the claim petition made under Section 166, there is no justification to await the decision of larger bench.Basis of assessment of all damages for personal injury is compensation, the whole idea is to put the claimant in the same position as he was in so far as money can – Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered, in some cases for personal injury, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living while in others, the claim may be made for partial loss of earnings, each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum - Conventional basis of assessing compensation in personal injury cases which is recognized mode as to the proper measure of compensation is taking an appropriate multiplier of an appropriate multiplicand – In the instant case Trbunal passed the award of Rs. 1,50,000.00 which has been enhanced upto Rs. 3,50,000.00 by the High Court – Held, multiplier of 18 is appropriate hence award revised for Rs. 9,06000.00 as per the loss of future earnings

Supreme Court of India

CIVIL APPEAL NO.  5510 of 2005
Hon'ble Judge(s): Aftab Alam & R.M. Lodha
Date of Judgment: 29 September, 2010

Arvind Kumar Mishra Vs.New India Assurance Co. Ltd. and Anr.


O R D E R


R.M. LODHA, J.

The present appeal, by special leave, raises the issue, indeed the only issue, of assessment of loss of earnings in respect of the victim of a motor accident who was certified 70% permanent disablement.

2. Arvind Kumar Mishra – appellant – a student of engineering final year at Birla Institute of Technology, Mesra (B.I.T.) at the time of accident was seriously injured as a result of a truck bearing registration No. DEG 3291 being negligently driven on June 23, 1993. The truck coming from the opposite direction hit the motorcycle and the appellant riding the motorcycle was thrown on the road. He sustained multiple injuries; diffused multifocal damage of brain with interventricular hemorrhage; optic atrophy in right eye and 3+ relative afferent papillary in left eye; amputation of right hand distal to carpometacarpal joint level; compound fracture of shaft of tibia (left); total bronchial plexus palsy; blocking of anterior wall of the trachea at the level of the 3rd and 4th cartilaginous rings and disfiguration. He was treated by several doctors at various hospitals namely, R.M.C.H, Ranchi, C.C.L .Hospital, Gandhinagar, Christian Medical College and Hospital, Vellore and Shankar Netralaya, Madras. He had to undergo few surgical operations. After a little recovery, he made an application under Section 166 of the Motor Vehicles Act, 1988 (`the 1988 Act’) claiming total compensation in the sum of Rs. 22 lakhs which included the expenditure already incurred by him up to that time to the extent of Rs. 1,50,000/- for his treatment.

3. The offending vehicle was insured with the New India Assurance Company Ltd. (‘the insurer’). The owner as well as insurer contested the claim petition. The appellant passed out Bachelor of Engineering during the pendency of the claim petition. He examined himself and tendered some of the doctors who treated him in evidence. The vouchers of the expenditure incurred by him on his treatment at various hospitals were also produced.

4. The Motor Vehicle Accident Claims Tribunal, Ranchi (for short ‘the Tribunal’) in its award dated December 19, 2002 held that the accident occurred due to rash and negligent driving of the truck bearing registration No. DEG 3291. It also held that the owner of the vehicle and the insurer were liable to pay the compensation to the appellant. As regards quantum of compensation, the Tribunal allowed the total compensation of Rs. 2,50,000/- along with the interest @ 9% per annum from August 7, 2002 by considering the matter as follows:

“…….under the head of pecuniary damages the amount which has been amended (sic) by the claimant in his treatment including medical expenditure other material loss, a total lump sum compensation amount of Rs. 1,50,000/- (Rupees one lac and fifty thousand only) is being granted to the claimant. So far as nonpecuniary damages are concerned from the evidence itself it is very much clear that injured was a brilliant student of engineering Final year at B.I.T. Mesra, and due to said accident he has lost his future career. He has also suffered from mental and physical shock and has to be suffered in future. There is also damages and the loss of expectation of life on account of the injuries sustained by him. He has to face inconvenience, hardship, discomfort disappointment and mental stress till his life, therefore, a lump sum compensation amount of Rs. 1,00,000/- (Rupees one lac only) is being granted to the claimant. The total compensation came to Rs. 2,50,000/- (Rupees two lac and fifty thousand only) which the claimant is entitled with interest @ 9% per annum.”

5. The claimant, dissatisfied with the assessment of compensation by the Tribunal, approached the High Court of Jharkhand, Ranchi. The High Court increased the amount of compensation from Rs. 2,50,000/- to Rs. 3,50,000/- having considered the matter thus:

“On an application under Section 166 of the Motor Vehicles Act, 1988 vide Compensation Case No. 183 of 1993 the Motor Vehicles Accident Claims Tribunal, Ranchi, assessed a sum of Rs. 1,50,000/- to be paid to him under the head pecuniary damages i.e. the amount which was expended by him towards his treatment including the medical expenses and a sum of Rs. 1,00,000/- was granted towards non pecuniary damages. i.e. for his permanent disablement to the extent of 70% for the loss of right wrist and paralysis of right upper limb as also for loss of vision in his right eye. Keeping into consideration the nature of disability the appellant had to sustain and loss of his future expectancy in life, we are of the view that he was entitled to a sum of Rs. 2,00,000/- on account of non pecuniary loss. Accordingly, we modify the impugned judgment and award to the extent that instead of total amount of Rs.2,50,000, the claimant is entitled to get Rs. 3,50,000/-. It is stated that the award amount with interest granted by the tribunal had already been paid. Hence, we make it clear that there will be no interest payable on the compensation amount if the said amount is deposited before the tribunal within six weeks, failing which the interest @9% per annum as granted by the tribunal shall be payable on the enhanced amount also from 07/08/2002.”

6. It is not necessary to discuss the liability of the respondents. That was disputed, but the matter has been considered, and the Tribunal found that due to rash and negligent driving by the driver of the truck (DEG 3291), the accident took place in which the appellant sustained serious multiple injuries and, therefore, owner and insurer were liable to him for the damage. There was no appeal with regard to that matter before the High Court.

7. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of life time’s earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases – and that is now recognized mode as to the proper measure of compensation – is taking an appropriate multiplier of an appropriate multiplicand.

8. In General Manager Kerala State Road Transport Corporation, Trivandrum v.. Susamma Thomas (Mrs.) and Ors1., this Court laid down the following principles:

“13. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last.”

17. The multiplier represents the number of years’ purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs 10,000. If a sum of Rs 1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs 10,000 would be 20. Then the multiplier, i.e., the number of years’ purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up.”

9. The principles laid down in Susamma Thomas1 still hold the field; the only variation has been in respect of maximum multiplier. In the present case the Tribunal as well as the High Court seriously erred in not assessing the compensation for personal injury to the appellant in accord with the recognized mode i.e., by taking an appropriate multiplier of an appropriate multiplicand.


10. The appellant at the time of accident was a final year engineering (Mechanical) student in a reputed college. He was a remarkably brilliant student having passed all his semester examinations in distinction. Due to the said accident he suffered grievous injuries and remained in coma for about two months. His studies got interrupted as he was moved to different hospitals for surgeries and other treatments. For many months his condition remained serious; his right hand was amputated and vision seriously affected. These multiple injuries ultimately led to 70% permanent disablement. He has been rendered incapacitated and a career ahead of him in his chosen line of mechanical engineering got dashed for ever. He is now in a physical condition that he requires domestic help throughout his life. He has been deprived of pecuniary benefits which he could have reasonably acquired had he not suffered permanent disablement to the extent of 70% in the accident.

11. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like B.I.T., it can be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs. 3,50,000/- per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs. 60,000/- per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs. 60,000/- per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis. Since he suffered 70% permanent disability, the future earnings may be discounted by 30% and, accordingly, we estimate upon the facts that the multiplicand should be Rs.42,000/- per annum. The appellant at the time of accident was about 25 years. As per the decision of this Court in Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr1. The operative multiplier would be 18. The loss of future earnings by multiplying the multiplicand of Rs. 42,000/- by a multiplier of 18 comes to Rs. 7,56,000/-. The damages to compensate the appellant towards loss of future earnings, in our considered judgment, must be Rs. 7,56,000/-. The Tribunal awarded him Rs. 1,50,000/- towards treatment including the medical expenses. The same is maintained as it is and, accordingly, the total amount of compensation to which the appellant is entitled is Rs. 9,06,000/- . 

12. Before we close, we must notice in all fairness to the learned counsel for the insurer his submission that the appellant is entitled to compensation in accordance with the Second Schedule appended to the 1988 Act only. This submission overlooks the fact that the appellant made his claim under Section 166 of the 1988 Act and not under Section 163A. It is true that in Reshma Kumari & Ors. v. Madan Mohan & Anr.,1 a two-Judge Bench of this Court has referred the question whether multiplier specified in the Second Schedule should be taken to be a guide for calculation of the amount of compensation payable in a case falling under Section 166 to the larger bench and the said question is not yet authoritatively decided. However, in a case such as the present case, we find no justification to await decision of the larger bench on the aforenoticed question as there are already few decisions of this Court taking a view that the Second Schedule has no application to the claim petition made under Section 166 of the 1988 Act.

13. In the result, the appeal is allowed in part and the compensation awarded by the High Court in the sum of Rs. 3,50,000/- is enhanced to Rs. 9,06,000/-. The appellant shall be entitled to 9% simple interest per annum on the enhanced amount from August 7, 2002 until the date of actual payment. The appellant shall also be entitled to the costs of this appeal which we quantify at Rs. 15,000/-.

Union of India and others Versus Narinderjit Singh Sidhu

Service Laws – Promotion – Promotion to the post of Major General in the Army Aviation Corps – Denial for the post of senior most Brigadier on the ground that no appointment of Major General was authorized to Army Aviation Corps (Permanent Cadre) - Conjoint reading of the documents produced on record of the case by the parties makes it evident that the post of Major General had already been earmarked and specified for Army Aviation Corps to which sanction of the President of India was granted and conveyed, the language of the documents on record do not in any manner suggest that Army Aviation Corps had no specified vacancy in the rank of Major General - After creating a permanent cadre and specifying the post of Major General in the Army Aviation Corps, the appellants were treating the same as an unspecified vacancy to be manned by an officer to be brought from the other Corps, which was erroneous and not justified – Held, High Court rightly observed that the inevitable effect of filling up the post of Major General sanctioned in Army Aviation Corps by bringing Major General from other Corps had the adverse effect of marring the chances of promotion of the officers belonging to Army Aviation Corps

Supreme Court of India

CIVIL APPEAL NO. 0 OF 2003
Hon'ble Judge(s): J Panchal, G S Misra
Date of Judgment: 29 September, 2010

Union of India and others Versus Narinderjit Singh Sidhu

O R D E R
J.M. Panchal, J.
This appeal is directed against judgment dated October 10, 2002, rendered by the Division Bench of High Court of Punjab and Haryana at Chandigarh in CWP No. 10037 of 2002, by which the appellants are directed to consider the case of the respondent for promotion to the rank of Major General in accordance with the Rules and his service profile in the Army Aviation Corps.

2. The relevant facts emerging from the record of the case are as under:

The respondent was commissioned in the Indian Army in the Regiment of Artillery on June 23, 1968 in the rank of Second Lieutenant. After grant of Commission, the seniority of the respondent was re-fixed with effect from August 21, 1969. Thus, for the purpose of promotion and career advancement, he became an officer of 1969 Batch. The Government of India, Ministry of Defence, sanctioned formation of a nucleus Additional Directorate General Army Aviation at Army Head Quarters by order dated October 29, 1986. The selection grade vacancies including the post of Major General were to be from within the sanctioned cadre of the Army and were to remain unfilled for a period of one year till the post of Additional Director General Army Aviation was sanctioned by the Government of India. The Chief of Army Staff approved the establishment of a permanent cadre of officers for the Army Aviation Corps by an order dated April 17, 1997. In the said order/letter, it was mentioned that the cadre initially would have 15% permanent officers and 85% would be borrowed from the other cadres and would be built up in a graduated manner to 100% permanent cadre. By the said letter, cadre structure was formulated. Regarding allocation of vacancy in the rank of Major General to permanent cadre, it was mentioned that it would be decided later. The initial induction was to be on voluntary basis with an irrevocable one time option. It was also provided by the said order that Aviation Corps Officers would be eligible for induction into general cadre on the lines as officers of supporting Arms, i.e., after selection based on positive recommendation in designated Command and staff assignment.

In May, 1997 the respondent was promoted to the rank of Brigadier in the Regiment of Artillery. On September 1, 1997 a letter was issued by Army Head Quarters seeking application from volunteers for transfer to Army Aviation as per the terms and conditions set out in the letter/order dated April 17, 1997 passed by the Chief of Army Staff. The record shows that the President of India approved following Peace Establishments of Army Aviation: -



a) Additional Directorate General Army Aviation, at Army Head Quarters.



b) Command (Aviation) Branch at Eastern, Western and Northern Commands.



c) Command (Aviation) Branch Southern and Central Commands. The President also sanctioned selection grade ranks as under: -



(a) Major General - 1 (Offset provided Ex Pay Commission Cell).



(b) Brigadiers - 7 ........................



It was also mentioned in the said order that three selection grade ranks of Brigadiers for which offsets have not been identified would remain suppressed till suitable offsets were identified by the SD Directorate and removal of this suppression would be carried out in consultation with MOD (Fin.). The decision of the President was communicated by the Government of India, Ministry of Defence, New Delhi vide communication dated November 27, 1997 to the Chief of the Army Staff. Along with the communication dated November 27, 1997, appendix A was also sent which was in the following terms: -



“Appendix A to Government of India,

Ministry of Defence letter

No. 00659/PE/Misc./AA-5/

1875/DO-1/D(GS-I)

Dated 27 Nov., 1997.

(The information given in this document is not to be communicated decision directly or indirectly to the press or to any person not authorized to receive it)

PE No. 00659/PE/Misc.AA-5/

1975/DO-1/D(GS-1)

Dt. 27th Nov., 1997

(Three pages)



ADDITIONAL DIRECTORATE GENERAL ARMY AVIATION ARMY HEAD QUARTERS PEACE ESTABLISHMENT SUMMARY



Personnel



Officers



Army - 25

JCO - 2

Other Ranks - 44

Total - 71

Transport

Car Ambassador - 1

Gypsy - 2

Motor Cycle - 2

Total - 5

----------------------------------------------------------

Details Number Notes

----------------------------------------------------------

1. Personnel

Officers

Additional Director General

(Maj. Gen.) (a) 1

Deputy Director General (Brig)

(a) and (i) 2

Directorate (Col) (a) 6

AMS (Lt. Col) (a) (b) 1

General Staff Officers

(Lt. Col.) (a) (h) 8

General Staff Officers

(Maj) (a) (h) 7

Total 2 5

Junior Commissioned Officer (b)

JCO (Clerk) (c) (d) (e) 2

Other Ranks

Personal Assistant 9

Clerk (GD) (c) (d) (f) 15

Drivers (c) (f) 3

Driver Motor Cycle (c) (f) 2

Draughtsman (c) (d) (g) 2

Jetliner Operator (c) (g) 1

Runner 11

Despatcher 1

Total other tanks 4 4



2. Transport

Motor Cycle 2

Car Ambassador 1

Gypsy 2

Total transport 5



GENERAL NOTES

(a) Officer to be trained aviator

(b) To function under MS-6

(c) Rank as per Corps roster

(d) To be computer qualified

(e) One JCO to function under MS-6

(f) To be provided by Regiment of Artillery

(g) To be provided by Corps of Engineers

(h) Two officers to be qualified on computer

(i) Appointment of One Deputy Director

General will be kept suppressed till offset is identified by SD Directorate. The removal of suppression would be carried out in consultation with MOD (Fin.).”
On December 14, 1997, the respondent voluntarily applied for permanent transfer from the Regiment of Artillery to Army Aviation Corps. By a communication dated November 6, 1998, the transfer of the respondent to Army Aviation Corps was approved with immediate effect by the Army Head Quarters. Between the year 1997 and 1999, the respondent commanded 373(I) Artillery Brigade in the Regiment of Artillery. The respondent assumed the appointment of Brigadier (Aviation) Head Quarters Western Command at Chandimandir on June 24, 1999. On December 22, 2001, the respondent submitted a non-statutory complaint to the Chief of Army Staff against nonconsideration of his name for promotion to the next rank of Major General in the Army Aviation Corps, since he was the senior most Brigadier in the Army Aviation Corps (Permanent Cadre). The complaint of the respondent was considered by the Chief of Army Staff but was rejected on June 10, 2002 on the ground that no appointment of Major General was authorized to Army Aviation Corps (Permanent Cadre). By the said communication the respondent was informed that if he so wished, he should seek reversion to the Regiment of Artillery.

3. Feeling aggrieved, the respondent filed CWP No. 10037 of 2002 before the High Court of Punjab and Haryana at Chandigarh praying, inter alia, to direct the appellants to consider his case for promotion to the rank of Major General in Army Aviation Corps. He also prayed that the appellants be restrained from posting an ex-cadre officer to the Post of Additional Director General Army Aviation, Army Head Quarters. The petition filed by the respondent was contested by the appellants. The High Court, by the impugned judgment, has directed the appellants to consider the case of the respondent for promotion to the rank of Major General in Army Aviation Corps, giving rise to the instant appeal.

4. This Court has heard the learned counsel for the parties at length and in great detail. This Court has also considered the documents forming part of the appeal.
5. The fact, the respondent had a reasonably good service profile and was awarded various distinctions, as mentioned in the impugned judgment, is not in dispute. The respondent was promoted on selection to the post of Brigadier in the Regiment of Artillery in the year 1997. The appellants had invited applications for conversion to Army Aviation Corps and in response thereto the respondent had submitted application on December 14, 1997. The respondent was permanently converted to the Army Aviation Corps on November 6, 1998. It is relevant to notice that the respondent, having opted for conversion from Regiment of Artillery to Army Aviation Corps, he was precluded from again opting for Regiment of Artillery. This is so in view of the letter/order dated April 17, 1997, referred to earlier. As per the guidelines mentioned in the said communication, Aviation Officers were to be groomed in stipulated criteria appointments and due career protection was to be given to those posted in “hi-tech” appointments like test Pilots. On the basis of these clear terms, the respondent had applied for conversion to the Aviation Corps on permanent basis. The respondent left his permanent Corps after considering various aspects including the chances of future promotion in the Aviation Corps. Initially, the allocation of vacancy in the rank of Major General in the Aviation Corps was not decided. However, the process of exercising an option was irreversible one and the officer was left with no option to revert back to his parent Corps. The respondent had made a non-statutory complaint as his name for promotion to the next rank of Major General was not considered. It was rejected vide letter dated June 10, 2002. The only reason mentioned for rejecting the claim of the respondent was that the appointment of Major General was not authorized for Army Aviation Corps, Permanent Cadre and holding of selection for the said rank was not possible. This Court finds that the reason given by the Chief of Army Staff for turning down the request made by the respondent to consider his case for promotion to the post of Major General, was totally erroneous and contrary to the record.

6. As observed earlier, one post of Major General was allocated to the Army Aviation Corps, which is evident from the communication dated November 27, 1997. While providing a post for Major General in Army Aviation Corps, one post of Major General provided in Pay Commission Cell was Offset. The claim made by the appellants that the provision of post of Major General, made in Army Aviation Corps was mere allocation of vacancy by the Chief of Army Staff and not for release of vacancy for Army Aviation Corps, cannot be accepted in view of the contents of the communication dated November 27, 1997 nor the contention that the issue of allotment of specified and unspecified vacancies was required to be determined by Chief of Army Staff can be appreciated. Though the order rejecting the complaint of the respondent does not mention so, a stand was taken by the learned counsel for the appellants before this Court that at the time when the complaint was made by the respondent, the post of Major General in Army Aviation Corps was being manned by a Major General, who was brought from Artillery Corps. On question being asked as to whether the Major General, who was brought from Artillery Corps and was manning the post of Major General in Army Aviation Corps, had voluntarily applied as contemplated by the Scheme for being absorbed in Army Aviation Corps, the learned counsel could not give any reply. Nor the learned counsel could give reply to the question whether condition that once an officer opts for Army Aviation Corps would not be entitled to revert back to his parent Corps, was made applicable to the Major General, who was brought from Artillery Corps and was manning the post of Major General in Army Aviation Corps. There is no manner of doubt that bringing a Major General from different cadre to man the post of Major General in Army Aviation Corps was illegal and contrary to the guidelines laid down by the appellants themselves. The record would show that after sanction to the formation of the nucleus Additional Directorate General Army Aviation at Army Head Quarters vide order dated October 29, 1986, a permanent and regular cadre was established for the Army Aviation Corps vide order dated April 17, 1997 passed by the Chief of Army Staff. Having sanctioned the cadre structure by the order dated April 17, 1997, Selection Grade ranks were provided by communication dated November 27, 1997 under which the post of Major General was sanctioned after offsetting the post of Major General provided in Ex Pay Commission Cell. Under the circumstances, this Court is of the firm opinion that no other Major General could have been brought to Army Aviation Corps for manning the post of Major General sanctioned for the said establishment.

7. A conjoint and purposeful reading of the documents produced on record of the case by the parties makes it evident that the post of Major General had already been earmarked and specified for Army Aviation Corps to which sanction of the President of India was granted and conveyed. The language of the documents on record do not in any manner suggest that Army Aviation Corps had no specified vacancy in the rank of Major General. After creating a permanent cadre and specifying the post of Major General in the Army Aviation Corps, the appellants were treating the same as an unspecified vacancy to be manned by an officer to be brought from the other Corps, which was erroneous and not justified at all. The High Court has rightly observed that the inevitable effect of filling up the post of Major General sanctioned in Army Aviation Corps by bringing Major General from other Corps had the adverse effect of marring the chances of promotion of the officers belonging to Army Aviation Corps.

8. On the facts and in the circumstances of the case, this Court is of the opinion that a just direction is given to the appellants to consider the case of the respondent for promotion to the post of Major General in Army Aviation Corps and no case is made out for interfering with the same in the instant appeal. The appeal, which lacks merit, therefore, deserves to be dismissed.

9. For the foregoing reasons, the appeal fails and is dismissed. There shall be no order as to costs.

BIMLA DEVI VS.STATE OF HIMACHAL PRADESH & ORS.

Service Laws – Appointment - Appointment on the post of Instructor – Denial on the ground of Educational Qualification - Selection Board prescribed the qualifications for the post, Trade Certificate in Cutting & Tailoring while appellant posses Trade Certificate in Dress Making – Selection Board prescribed the qualifications for the post, bona fide proceeded on the basis that a Trade Certificate in Cutting & Tailoring is equivalent to a Trade Certificate in Dress Making, and on that basis made the appointment which has been accepted by the Tribunal and the High Court - Held, no interference should be made after a lapse of 11 years, even if there is some difference between the two trades.

Supreme Court of India

CIVIL APPEAL NO. 8428 OF 2010
Hon'ble Judge(s): R. V. RAVEENDRAN & J. M. PANCHAL
Date of Judgment: 30 September, 2010

BIMLA DEVI VS.STATE OF HIMACHAL PRADESH & ORS.

O R D E R


R. V. Raveendran, J.-Leave granted.

2. Applications were invited from eligible candidates, by the Himachal Pradesh Public Service Commission for filling up one post of Instructor (Dress Making). The essential qualification prescribed for the post was as follows :

"Qualification Essential :

(i)    Matric with Mathematics or its equivalent from a recognized University/Board.

(ii)    One year National Trade Certificate in Dress Making and one year National Trade Certificate in Embroidery and Needle Work.

(iii)    Central Training for Instructor (CTI) course of one year duration in the related trade i.e. Dress Making or Embroidery (or Trades for which Craft Training Instructor Training facility is not available, at least four years experience in the trade concerned in an Industrial Training Institute and or in reputed Industrial concern).

(iv)    At least two years experience in the Trade concerned."

3.    Out of the 60 applications received, 14 candidates including the appellant and the fourth respondent were found eligible and called for interview on 31.5.1999. The Himachal Pardesh Sub-ordinate Services Selection Board (third respondent) held the interviews and selected the fourth respondent for the post in pursuance of which she was appointed on 8.7.1999.

4.    Being aggrieved by her non-selection, the appellant filed an application (OA No.2406 of 1999) before the Himachal Pradesh Administrative Tribunal challenging her non-selection. The appellant contended that the fourth respondent was ineligible for the post and could not have been appointed, as she did not have a National Trade Certificate in Dress Making, but had only a National Trade Certificate in Cutting & Tailoring. The respondents resisted the petition on the ground that fourth respondent was recommended for the post by the third respondent as it considered that the National Trade Certificate in Cutting & Tailoring was equivalent to the National Trade Certificate in Dress Making and that the fourth respondent had the other requisite qualifications. It was also contended that the training in Cutting & Tailoring trade was virtually the same as training in the Dress Making trade. The Tribunal dismissed the application filed by the appellant on the ground that the third respondent (Sub-ordinate Services Selection Board) constituted by the State Government had found that the fourth respondent possessed the requisite qualifications and had also found that the National Trade Certificate in Cutting & Tailoring held by the fourth respondent was equivalent to a National Trade Certificate in Dress Making; and that in the absence of any mala fides or other irregularities in the process of selection, there could be no interference. The Tribunal relied upon the decision in Durga Devi & Anr. vs. State of H.P - 1997 (4) SCC 575, which followed the decision in Dalpat Abasaheb Solunke vs. Dr. B.S. Mahajan - 1990 (1) SCC 305. The appellant challenged the order of the Tribunal by filing a writ petition before the Himachal Pradesh High Court. The said writ petition was dismissed by the High Court a brief order dated 16.11.2005 that no ground was made out to interfere with the order of the Tribunal. The said order of the High Court is challenged in this appeal by special leave.

4.    The appellant has produced before this Court the syllabus for Dress Making Trade course and syllabus for Cutting & Sewing Trade course. She has also produced the minimum qualifications prescribed for admission to Cutting & Tailoring course and the minimum qualifications for the Dress Making Trade course. These show that both Dress Making course and Cutting & Sewing course are one year courses, but the entry qualification for the two courses are different. For Dress Making course, the minimum educational qualification is 10th Class (Pass), whereas for Cutting & Sewing course, the minimum educational qualification is 8th Class (Pass). The syllabus for the Dress Making trade is also different from the syllabus of Cutting & Sewing trade, though there are some common features. After going through the syllabi for the two courses and the prescribed entry qualification for the two courses, there is no doubt that the Dress Making course is qualitatively different from Cutting & Sewing course, though there are several common features. If the contention of the respondents that the trade of Dress Making and the trade of Cutting & Sewing are the same is correct, then there was no need for different training schemes for Dress Making and Cutting & Tailoring. There is therefore, considerable force in appellant's contention that the assumption by the respondents that the two courses are identical, is not sound. But the appellant did not produce these materials (that is syllabi and entry qualifications for the two trades) either before the Selection Board, or the Tribunal or the High Court. Further what is produced before us is the syllabus for Cutting and Sewing trade course and not for Cutting & Tailoring trade course which has been considered to be equivalent to the Dress making trade course. Be that as it may.

5.    The question is whether the difference between the two courses is so material as to invite interference with the decision of the Tribunal affirmed by the High Court. The Tribunal has recorded a finding of fact that the Himachal Pardesh Sub-ordinate Service Selection Board had bona fide proceeded on the impression that a certificate in Cutting & Tailoring trade was equivalent to as a certificate in Dress-Making trade. The Tribunal also found that there were no mala fides or irregularities in the process of selection and the fourth respondent possessed all other required qualifications. It is possible that having regard to the job requirements, the Selection Board proceeded on the basis that the National Trade Certificate in Cutting & Tailoring is equivalent to National Trade Certificate in Dress Making. It is also possible that the Sub-ordinate Service Selection Board was not aware of different syllabi being prescribed for the two courses by the Directorate-General of Employment and Training, Govt. of India, and had assumed that they were similar. Unfortunately, the appellant did not produce these material (extracted from the Training Manual for Industrial Training Institutes) before the Tribunal or before the High Court. Nor did she object to the appointment of the fourth respondent by bringing the said material to the notice of the Selection Board or the State Government. The fourth respondent who has been appointed in the year 1999 has in the meanwhile continued in employment for more than eleven years.

6. This Court in Dalpat Abasaheb Solunke (supra), held as follows :

"It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved mala fides, affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant status. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."

In Durga Devi (supra), this Court held as follows :

"......the selection of the appellants has been quashed by the Tribunal by itself scrutinising the comparative merits of the candidates and fitness for the post as if the Tribunal was sitting as an appellate authority over the Selection Committee. The selection of the candidates was not quashed on any other ground. The Tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment. That was the function of the selection committee." Therefore, if the Selection Board which prescribed the qualifications for the post, bona fide proceeded on the basis that a Trade Certificate in Cutting & Tailoring is equivalent to a Trade Certificate in Dress Making, and on that basis made the appointment, and that has been accepted by the Tribunal and the High Court as proper, we do not consider it a fit case for interference after 11 years, even if appellant has made out some difference between the two trades.

7.    Another aspect to be noticed is that there is no material to show that if fourth respondent had been found to be ineligible, the appellant would have been selected for appointment. There were 14    eligible candidates and the appellant would not automatically become entitled to appointment even if there was any infirmity in the selection and appointment of the third respondent. Be that as it may.

8.    On the peculiar facts and circumstances we do not therefore propose to interfere with the appointment of fourth respondent or the decisions of the Tribunal and the High Court affirming the same. The appeal is therefore dismissed.

Saturday, October 9, 2010

Subhan Rao & Anr. vs Parvathi Bai & Ors.

Hindu Succession Act, 1956 — section 14(1) — Whether Smt. Sundrabai wife of Ramchandra Rao, who was given right to enjoy certain lands belonging to Shiddoji Rao (predecessor-in-interest of the appellants) in lieu of maintenance became full owner thereof in terms of Section 14(1) and the sale deeds executed by her were valid — the finding of the trial Court that by virtue of Section 14(1) of the Act Smt. Sundrabai became absolute owner of the property and she was entitled to alienate the same was affirmed by the lower appellate Court and the High Court — appeal — the appellants did not dispute that Smt. Sundrabai was entitled to get maintenance from the family of her father-in-law, Shiddoji Rao. Not only this, the parties went to the trial on an agreed premise that she had a pre-existing right of maintenance and she was given the right to enjoy the lands in lieu of her maintenance — this court held that by virtue of Section 14(1) of the Act, Smt. Sundrabai acquired absolute right over the lands in respect of which she was given right of enjoyment and she became full owner thereof without any restriction on her right to deal with the property in the manner she liked — appeal dismissed.
 
Supreme Court of India

CIVIL APPEAL NO. 7277 OF 2002
Hon'ble Judge(s): G Singhvi, A K Ganguly
Date of Judgment: 14 September, 2010

Subhan Rao & Anr. vs Parvathi Bai & Ors.


O R D E R
 
G.S. Singhvi, J.

1. Whether Smt. Sundrabai wife of Ramchandra Rao, who was given right to enjoy certain lands belonging to Shiddoji Rao (predecessor-ininterest of the appellants) in lieu of maintenance became full owner thereof in terms of Section 14(1) of the Hindu Succession Act, 1956 (for short, `the Act’) and the sale deeds executed by her were valid are the questions which arise for consideration in this appeal filed against judgment dated 26.9.2001 of the learned Single Judge of Karnataka High Court, who declined to interfere with the concurrent dismissal of the suit filed by the appellants.

2. The relationship of the parties is depicted in the chart given below:

Shiddoji Rao Yeshwant Rao Gangubai (Mistress/Concubine)

(died on 16.01.1942)

Sadashiv Rao

(son of Shiddoji Rao)

married to Prafulladevi

(Plaintiff No.2)

(Appellant No.2)

(Plaintiff No.1) Subhan Rao

(Appellant No.1)

Sadashiv Rao Shiddoji Rao Appellant No.2 (b)

Appellant No.2 (a)

Miss Pretam Appellant No.2 (c)

3. Shiddoji Rao was Pargana Watandar of Nagarmanoli, Chikkodi Taluk. He owned agricultural lands in Belagali and Kabbur villages of Chikkodi Taluk, Belgam District. He kept Gangubai as his mistress. Ramchandra Rao was born from that relationship. Shiddoji Rao died on 16.1.1942. About four months before his death, Shiddoji Rao executed maintenance deed Ex.P-1 (his son Sadasiv Rao joined his father in executing the deed), (Adopted son of Sadashiv Rao) Ramchandra Rao Shiddoji Rao (Son born from the relationship of Shiddoji Rao, died in 1957) Sundrabai (Wife of Ramchandra Rao, died on 22.7.1979) whereby possession of Rayatawa lands situated at Belagali and Kabbur villages was given to Ramchandra Rao for his maintenance with a stipulation that in case of his death without having natural male issue, his wife shall enjoy the lands for her maintenance till her life time and the same shall revert to the executants after her death. The deed also contained a condition that Ramchandra Rao, his wife and natural heirs shall not create any encumbrance or alienate the lands. The relevant portions of Ex.P-1 are extracted below:

“Deed of maintenance in respect of Rayatawa lands situated at Belagali and Kabbur. Lands valued at Rs.5000/-. Deed of maintenance executed in favour of Chi. Ramachandra Siddojirao Parwatrao, caste Lingayat, occupation: agriculture, age 45 years, resident of Nagarmunoli by (1) Siddojirao Yeshwantrao Parvatrao and (2) Sadashivarao Siddojirao Parvatrao, both Lingayasts by caste, occupation Zamindari, aged 72 and 22 years respectively resident of Nagaramonoli, taluka Chikodi is as under:

You are the son of Gangabai concubine of the person No.1 out of us, and are born from him (No.1), and the person No.1 himself has been maintaining you will uptil now. As you too have been behaving well and affectionately with us, and as both of us have been behaving well and affectionately with you, and as both of us have affection for you and think it proper to make some arrangements for maintenance of you and your natural issue and as you too have made this demand to us – through the panchas, we have in pursuance thereof given into your possession this day for your maintenance the below mentioned lands which have been of our ownership and in our wahiwat. Particulars of these lands are as follows:

Description of the Rayatawa lands situate within the limits of the Inam village, namely Belgali and Kabbur, within the jurisdiction of the Sub-Registrar of Taluka Chikodi, Sub- District Chikodi, Dist. Belgaum.

R.S. No.:- 3, 12, 334, 262
Area:- 9.8, 26.31, 20.32, 14.-3
Assessment:- 9, 12, 14-2-0, 12-3-0

These lands of entire number are situate at the village Belgali The lands of entire numbers are situate at Kabbur Kasaba Kabbur

Thus, as the above mentioned immovable property is given into your possession today for the maintenance of your and your natural male issue, you should live happily by happily enjoying the said property from today. In case you die without having any natural male issue, your wife Sundrabai shall, after your death, enjoy the said lands for her maintenance only till her life time. After her death the said lands shall return to us. Neither you, nor your wife and your natural heirs shall have any right whatever for laying encumbrance upon and for alienating the said lands in any manner whatsoever. In case none of your natural male issue survives after your death, the said entire property shall return to our family. No contention whatsoever of anyone shall be maintainable in this behalf. As the above mentioned property, is as per your demand made through the panchas, given to you and your natural heirs for your proper maintenance as mentioned above, there is no right title and interest of yours left in any manner with regard to us. The valuation of the said property, is Rs.5000/- as per the market value.

To the above effect the deed of maintenance is duly executed. Dated 1st September 1941, handwriting of ..”

4. Ramchandra Rao died in 1957 and Smt. Sundrabai died in 1979. During her life time, Smt. Sundrabai executed sale deeds in favour of Smt. Parvathi Bai (defendant No.1 – respondent No.1) and S/Shri Deepak and Vinayak (defendant Nos. 2 and 3 – respondent Nos.2 and 3) in respect of some of the lands specified in Ex. P-1.

5. Subhan Rao (adopted son of Sadashiv Rao) (appellant No.1 herein) and Smt. Prafulla Devi wife of Sadashiv Rao who is now represented by her legal representatives, filed O.S. No. 62/1974 for declaration of title and for setting aside the sale deeds executed by Smt. Sundrabai, who was impleaded as defendant No.4 in the suit. After the death of Smt. Sundrabai, Smt. Ningawwa and Prakash Virupaksh Mahajan (respondent Nos. 4 and 5) were brought on record as her legal representatives on the basis of registered Will executed by the deceased. Appellant Nos.1 and 2 filed another suit being O.S. No. 116/1982 for grant of injunction to restrain the defendants from alienating the suit lands.

6. The thrust of the case set up by the appellants was that Shiddoji Rao and Sadashiv Rao executed deed of maintenance, which has also been described as `potagi patra’ with a view to provide maintenance to Ramchandra Rao (illegitimate son of Shiddoji Rao) and his wife Smt. Sundrabai during their lifetime and as both of them died issueless, the lands automatically reverted to the family of the executants. They also pleaded that in view of the express bar contained in Ex.P-1 against alienation of the lands mentioned therein, the sale deeds executed by Smt. Sundrabai in favour of respondent Nos.1 to 3 were nullity and they did not acquire any right on the basis of such alienation.

7. In the written statements filed on behalf of the defendants in the suit, it was pleaded that `potagi patra’ executed by Shiddoji Rao and his son Sadashiv Rao was in the nature of settlement deed whereby they recognized the antecedent rights of Ramchandra Rao in the co-parcenary property and the restriction contained against alienation of the property was not binding on them. It was further pleaded that by virtue of Section 14(1) of the Act, Smt. Sundrabai became full owner of the lands specified in Ex.P-1 and she was entitled to deal with and alienate the same.

8. The trial Court framed as many as 18 issues in O.S. No. 62/1974 and 5 issues in O.S. No. 116/1982. After considering the pleadings and evidence of the parties, the trial Court dismissed both the suits and held that two items of agricultural land situated at Belagali village were part of watan lands regranted in favour of Ramchandra Rao and the other two items of land in Kabbur village were his absolute property. The trial Court further held that Ex.P-1 was in the nature of settlement deed executed by Shiddoji Rao in recognition of the pre-existing rights of his illegitimate son and the conditional estate created in his favour was contrary to the provisions of Transfer of Property Act. The trial Court further held that Smt. Sundrabai had a pre-existing right of maintenance from the family of Shiddoji Rao and in view of Section 14(1) of the Act, she became full owner of the lands after the death of her husband and, as such, the alienations made by her were legal and valid.

9. The lower appellate Court held that Ex.P-1 was not in the nature of settlement deed in recognition of any pre-existing right of Ramchandra Rao and he did not get anything more than life estate in the property mentioned therein. However, the finding of the trial Court that by virtue of Section 14(1) of the Act Smt. Sundrabai became absolute owner of the property and she was entitled to alienate the same was affirmed by the lower appellate Court.

10. While admitting the second appeal, the learned Single Judge of the High Court framed the following question:

“Whether the right of maintenance conferred on defendant No.4 under the document Ex.P.1 had enlarged into an absolute right under Section 14(1) of the Hindu Succession Act, 1956?” After hearing the counsel for the parties, the learned Single Judge framed the following additional question:

“Whether the Courts below were justified in declaring title of the two watan lands of Belagali village when the very regrant is being agitated before the competent authorities?.”

11. The learned Single Judge considered the arguments of the counsel for the parties in detail, referred to `Classical and Modern Hindu Law’ (Vol.3) by J. Duncan M. Derett, `Hindu Dharamshastra’ (Vol. 2) by P.V. Kane, `Digest of Hindu Law on Contracts and Successions’ by Cole Brooke, `Manual on Hindu Law’ (Vol. 1) by S.T. Strang, and several judicial pronouncements and observed:



“What emerges from Ex.P.1 is Siddoji Rao had recognized Ramachandra Rao as his son and Sundari Bai as his daughterin- law though not in the legal sense but at least in the biological sense. It is not improbable that he realized that he was obliged to maintain the family of Ramachandra Rao morally even if it is said that he thought that he was not legally bound. After the death of Siddoji Rao, this moral liability for maintenance of the family of Ramachandra Rao and his wife got matured into “legal liability” in respect of the property of Siddoji Rao in the hands of Sadashiva Rao, Hindu Law has recognized the moral duty of a father-in-law to maintain the widowed daughter-inlaw from his self acquired property and on his death, the said moral liability ripens into a legal liability, in respect of the property of the father-in-law, (See the decision of Madras High Court in APPAVU UDAYAN Vs. NALLAMMA 1948(1) Mad. L.J., 110). No doubt this principle of Hindu Law applies to cases where the widowed daughter-in-law was the wife of the legitimate son of the father-in-law. I am only referring to this case to appreciate how the Hindu Law viewed the duty to maintain persons who are related even morally also. In a case like the one on hand where this duty is felt by Siddoji Rao to maintain, his son and his family members it may not be improper to extend the above reasoning of the Madras High Court to this case on the peculiar facts. There is nothing in the Hindu Law which was applicable prior to the adoption and maintenance act or in the provisions of the Adoption and Maintenance Act which prohibits the application of the above reasonings. In my view the combined reasoning of what is stated above, leads to the conclusion that Sudari Bai had a right or interest to be maintained in whatever way or form earlier to the execution of Ex.P.1 and Ex.P.1 can be related to this right.” The learned Single Judge then referred to Section 14 of the Act, the judgments of this Court in V. Tulasamma v. Sesha Reddy (1977) 3 SCC 99, Gulwant Kaur v. Mohinder Singh (1987) 3 SCC 674 and held:

“In this case I have held that Sundari Bai prior to execution of Ex.P.1 had certainly a claim, interest or a right for maintenance in the properties of Siddoji Rao. Ex.P.1 can only be relatable to this interest and the life estate created in her favour under Ex. P.1 fructifies and matures into an absolute estate after coming into force of Section 14(1) of the Hindu Succession Act Sundari Bai became an absolute owner of the suit properties viz., lands in Kobbur village and the findings of the Court below though on a different reasoning cannot be held to be illegal or against the provisions of Hindu Law.”

The learned Single Judge then noticed that the regrant order made in favour of Ramchandra Rao was challenged by Sadashiv Rao by filing an appeal before Assistant Commissioner, Chikkodi, which was pending and held that finding recorded by the trial Court on the issue of title of the property was pre-mature. Accordingly, he reversed the conclusion of the courts below that Ramchandra Rao had acquired title of two watan lands of Belagali village and held that the parties shall abide by the decision of the authorities under the Kulkarni Watan Abolition Act before whom the matter was pending.

12. Shri Shyam Divan, learned counsel for the appellants argued that the concurrent finding recorded by the trial Court and the lower appellate Court that by virtue of Section 14(1) of the Act, Smt. Sundrabai became owner of the lands specified in Ex.P-1 is liable to be set aside because the executors had created only life estate in favour of Ramchandra Rao and his wife Smt. Sundrabai. To buttress this argument, the learned senior counsel relied upon the contents of Ex.P-1. Shri Diwan then referred to the judgment of the Division Bench of Mysore High Court in Ramachandra Rao v. Sadashivarao Shiddojirao Parvatrao (1967) 2 Mysore Law Journal, page 303, to show that the suit filed by Ramchandra Rao for partition and possession of 1/4th share in the properties belonging to the family of Shiddoji Rao was dismissed by the three courts including the High Court on the premise that the plaintiff was an illegitimate son of Shiddoji Rao. Learned senior counsel argued that in view of that judgment Ramchandra Rao or for that reason his wife Smt. Sundrabai could not claim absolute right over the lands mentioned in Ex.P-1 and the courts below as well as the High Court committed serious error by refusing to nullify the sale deeds executed by her.

13. Shri V.N. Ganpule, learned senior counsel appearing for the contesting respondents supported the impugned judgment and argued that the High Court did not commit any error by refusing to interfere with the concurrent finding recorded by the two courts that after the death of her husband, Smt. Sundrabai became full owner of the lands in relation to which life interest was created in her favour. Shri Ganpule argued that dismissal of the suit filed by Ramchandra Rao did not have any impact on the right of Smt. Sundrabai, who became full owner of the lands by operation of law. Learned senior counsel laid emphasis on the language of the explanation appearing below Section 14(1) of the Act and submitted that the learned Single Judge of the High Court rightly declined to interfere with the concurrent finding recorded by the two courts that Smt. Sundrabai had become full owner of the suit lands and the sale deeds executed by her were valid. Learned senior counsel then argued that once Smt. Sundrabai acquired absolute right over the lands, the restriction contained in Ex.P-1 against alienation thereof became redundant and she was entitled to sell the same.







14. We have considered the respective arguments and submissions. The nature of the right created in favour of Hindu female by Section 14 of the Act was considered by a three-Judge Bench of this Court in V. Tulasamma and others v. Sesha Reddy (supra). Fazal Ali, J. analysed Section 14, referred to the views of several jurists and judicial precedents and recorded the following conclusions:

“(1) The Hindu female’s right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.

(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation.

(3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.

(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female’s limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.

(5) The use of express terms like ‘property acquired by a female Hindu at a partition’, ‘or in lieu of maintenance’, ‘or arrears of maintenance’, etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of subsection (2).

(6) The words ‘possessed by’ used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.

(7) That the words ‘restricted estate’ used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.” Bhagwati, J. recorded concurring opinion on his own behalf and on behalf of Gupta, J. in paragraph 70 of the judgment, the relevant portion of which is extracted below:-

“This line of approach in the construction of sub-section (2) of Section 14 is amply borne out by the trend of judicial decisions in this Court. We may in this connection refer to the decision in Badri Pershad case. The facts in that case were that one Gajju Mal owning self-acquired properties died in 1947 leaving five sons and a widow. On August 5, 1950, one Tuisi Ram Seth was appointed by the parties as an arbitrator for resolving certain differences which had arisen relating to partition of the properties left by Gajju Mal. The arbitrator made his award on October 31, 1950 and under clause 6 of the award, the widow was awarded certain properties and it was expressly stated in the award that she would have a widow’s estate in the properties awarded to her. While the widow was in possession of the properties, the Act came into force and the question arose whether on the coming into force of the Act, she became full owner of the properties under sub-section (1) or her estate in the properties remained a restricted one under sub-section (2) of Section 14. This Court held that although the award gave a restricted estate to the widow in the properties allotted to her, it was sub-section (1) which applied and not sub-section (2), because inter alia the properties given to her under the award were on the basis of a pre-existing right which she had as an heir of her husband under the Hindu Women’s Right to Property Act, 1937 and not as a new grant made for the first time. So also in Nirmal Chand v. Vidya Wanti (dead) by her legal representatives there was a regular partition deed made on December 3, 1945 between Amin Chand, a coparcener and Subhrai Bai, the widow of a deceased coparcener, under which a certain property was allotted to Subhrai Bai and it was specifically provided in the partition deed that Subhrai Bai would be entitled only to the user of the property and she would have no right to alienate it in any manner but would only have a life interest. Subhrai Bai died in 1957 subsequent to the coming into force of the Act after making a will bequeathing the property in favour of her daughter Vidyawanti. The right of Subhrai Bai to bequeath the property by will was challenged on the ground that she had only a limited interest in the property and her case was covered by sub-section (2) and not sub-section (1). This contention was negatived and it was held by this Court that though it was true that the instrument of partition prescribed only a limited interest for Subhrai Bat in the property, that was in recognition of the legal position which then prevailed and hence it did not bring her case within the exception contained in sub-section (2) of Section 14. This Court observed:

“If Subhrai Bai was entitled to a share in her husband’s properties then the suit properties must be held to have been allotted to her in accordance with law. As the law then stood she had only a life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only a life interest in the properties allotted to her share is merely recording the true legal position. Hence it is not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for her lifetime. Therefore the trial court as well as the first appellate court were right in holding that the facts of the case do not fall within Section 14(2) of the Hindu Succession Act, 1956.”

It will be seen from these observations that even though the property was acquired by Subhrai Bai under the instrument of partition, which gave only a limited interest to her in the property, this Court held that the case fell within sub-section (1) and not sub-section (2). The reason obviously was that the property was given to Subhrai Bai in virtue of a pre-existing right inheriting in her and when the instrument of partition provided that she would only have a limited interest in the property, it merely provided for something which even otherwise would have been the legal position under the law as it then stood. It is only when property is acquired by a Hindu female as a new grant for the first time and the instrument, decree, order or award giving the property prescribes the terms on which it is to be held by the Hindu female, namely, as a restricted owner, that sub-section (2) comes into play and excludes the applicability of sub-section (1). The object of subsection (2) as pointed out by this Court in Badri Pershad case while quoting with approval the observations made by the Madras High Court in Rangaswami Naicker v. Chinnammal is “only to remove the disability of women imposed by law and not to interfere with contracts, grants or decrees etc. by virtue of which a woman’s right was restricted” and, therefore, where property is acquired by a Hindu female under the instrument in virtue of a pre-existing right, such as a right to obtain property on partition or a right to maintenance and under the law as it stood prior to the enactment of the Act, she would have no more than limited interest in the property, a provision in the instrument giving her limited interest in the property would be merely by way of record or recognition of the true legal position and the restriction on her interest being a “disability imposed by law” would be wiped out and her limited interest would be enlarged under sub-section (1).”

15. In Gulwant Kaur and another v. Mohinder Singh and others (supra), a two-Judge Bench again considered the scope of Section 14, referred to some earlier judgments including Tulasamma’s case and observed:

“It is obvious that Section 14 is aimed at removing restrictions or limitations on the right of a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title. It makes no difference whether the property is acquired by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by her own skill or exertion or by purchase or by prescription or in any other manner whatsoever. The explanation expressly refers to property acquired in lieu of maintenance and we do not see what further title the widow is required to establish before she can claim full ownership under Section 14(1) in respect of property given to her and possessed by her in lieu of maintenance. The very right to receive maintenance is sufficient title to enable the ripening of possession into full ownership if she is in possession of the property in lieu of maintenance. Subsection (2) of Section 14 is in the nature of an exception to Section 14(1) and provides for a situation where property is acquired by a female Hindu under a written instrument or a decree of court and not where such acquisition is traceable to any antecedent right. We do not understand the court as laying down that what was enlarged by sub-section (1) of Section 14 into a full estate was the Hindu woman’s estate known to Hindu law. When the court uses the word “limited estate”, the words are used to connote a right in the property to which the possession of the female Hindu may be legitimately traced, but which is not a full right of ownership. If a female Hindu is put in possession of property pursuant to or in recognition of a right to maintenance, it cannot be denied that she has acquired a limited right or interest in the property and once that position is accepted, it follows that the right gets enlarged to full ownership under Section 14(1) of the Act. That seems to us to follow clearly from the language of Section 14(1) of the Act.” (emphasis supplied)

16. In the light of the above, we shall now consider whether concurrent finding recorded by the trial Court and the lower appellate Court that by virtue of Section 14(1) of the Act, Smt. Sundrabai became full owner of the lands over which she was given right of enjoyment in lieu of maintenance was vitiated by any patent legal infirmity warranting interference under Section 100 of the Code of Civil Procedure and whether the learned Single Judge was right in answering question No.1 against the appellants. A reading of Ex.P-1, the relevant portions of which have been extracted in the earlier part of the judgment makes it clear that Shiddoji Rao and his son Sadashiv Rao had executed deed of maintenance in respect of Rayatawa lands situated in Belagali and Kabbur villages in favour of Ramchandra Rao and Smt. Sundrabai because they believed that it was the duty of the family to maintain them. In their pleadings before the trial Court, the appellants did not dispute that Smt. Sundrabai was entitled to get maintenance from the family of her father-in-law, Shiddoji Rao. Not only this, the parties went to the trial on an agreed premise that she had a pre-existing right of maintenance and she was given the right to enjoy the lands in lieu of her maintenance. If Parliament had not enacted Section 14(1) of the Act, Smt. Sundrabai would have, in view of the plain language of Ex.P-1, enjoyed the property during her life time only and after her death the same would have reverted to the family of the executants. However, by virtue of Section 14(1) of the Act, Smt. Sundrabai acquired absolute right over the lands in respect of which she was given right of enjoyment and she became full owner thereof without any restriction on her right to deal with the property in the manner she liked. Therefore, the sale deeds executed by her were legal and the courts below as well as the High Court did not commit any error by declining to nullify the same.

17. In the result, the appeal is dismissed. However, the parties are left to bear their own cost.

Rama Devi vs State Of Bihar & Ors.

Indian Penal Code, 1860 — sections 406, 420, 468, 120-B — commission of the offences under — the appellant executed a sale-deed in favour of respondent no.2 in respect of a plot of land which had already been the subject matter of a previous transfer — the trial court took cognizance of the alleged offences and issued process only against the Appellant. The said orders affirmed by the High Court — appeal — this court found that If at all the Respondent No.2 has any grievance in respect of the sale deed which had been executed in his favour by the Appellant, it could be against the vendor and not the appellant it was the Appellant Rama Devi who had been cheated by her vendor, Prabhu Singh, who had sold her the property in question, although, the same is alleged to have been the subject matter of an earlier sale effected by his brother — no link had been established between the sale deeds executed by the brother of the vendor in respect of mutated property and the Appellant which could have given rise to suspicion — held the Appellant, Rama Devi, cannot be made responsible for the circumstances which followed the sale effected by the Appellant in favour of the Respondent No.2 — impugned orders of the high court set aside — criminal proceedings quashed — appeal allowed.

Supreme Court of India

CRIMINAL APPEAL NO. 1754 OF 2010
Hon'ble Judge(s): Altamas Kabir & A.K. Patnaik
Date of Judgment: 14 September, 2010

Rama Devi vs State Of Bihar & Ors..


O R D E R
ALTAMAS KABIR, J.


1. Leave granted.


2. This appeal is directed against the judgment and order dated 20th December, 2006, passed by the Patna High Court in Crl. Misc. No.19975 of 2006 dismissing the same.


3. The Respondent No.2, Birendra Kumar Sinha, filed a Complaint Case No.3714C of 2005 against the Appellant alleging that she had committed offences under Section 406, 420, 465, 468, 120-B of the Indian Penal Code (IPC) by executing a Deed of Sale in his favour, on 12th February, 2005, in respect of a plot of land measuring 1 Katha 5 Dhurs, pertaining to Survey No.235 in Khata No.3 of Mauza Dhelwan under Phulwarisharif P.S., District Patna, Bihar. According to the complainant, the boundary wall erected by him around the said plot was demolished and on inquiry, he came to know that one Prabhu Singh, who had sold the land to the Appellant was the full brother of one Sita Ram Singh, who had earlier sold the entire area of Survey plot No.235 to different persons at different points of time by different sale deeds. The complainant alleged that Prabhu Singh, the Appellant's vendor and brother of Sita Ram Singh, had acted as an attesting witness in the said Sale Deeds executed by Sita Ram Singh, which indicated that inspite of having knowledge that Sita Ram Singh had sold the lands in question to others, Rama Devi purchased the said lands and in order to cheat the complainant, executed the Sale Deed in his favour on 12th February, 2005.


4. On 28th February, 2006, the Sub-Divisional Judicial Magistrate, Patna, took cognizance of the alleged offences and issued process only against the Appellant herein. Aggrieved thereby, the Appellant filed Criminal Miscellaneous Petition No.19975 of 2006 before the Patna High Court on 10th May, 2006, for quashing the cognizance taken as also the entire proceedings in Complaint Case No.3714C of 2005 pending before the said Sub-Divisional Judicial Magistrate, Patna. On 20th December, 2006, the Patna High Court dismissed the Appellant's aforesaid petition under Section 482 Cr.P.C., which is the subject matter of challenge in the present appeal.

5. On behalf of the Appellant it was pointed out by Mr. Nagendra Rai, learned Senior Advocate, that the learned Magistrate had taken cognizance of the offences complained of on an erroneous appreciation of the material before him to the effect that it was not disputed that the property in question had earlier been sold by Sita Ram Singh, who was the brother of the Appellant's vendor, and that the Appellant had attested the said Sale Deed, which clearly indicated that the Appellant had knowledge of the earlier sale and despite the same, had not only executed the Sale Deed in favour of the complainant but had also indicated that no other deed had been executed in respect of the property which were free from all encumbrances. Mr. Rai referred to the Sale Deeds which had been referred to by the learned Magistrate, from which it would be apparent that the Appellant was not an attesting witness to any of the sale deeds. Mr. Rai also referred to the Sale Deed executed by the Appellant in favour of the complainant to show that Prabhu Singh was not an attesting witness in the said document either and the witnesses were : (1) Kedar Prasad Singh, (2) Nawal Kisahore and (3) Awadhesh Kumar.

6. Mr. Rai submitted that since the very basis for the cognizance taken by the learned Magistrate was fallacious and without any foundation, the High Court erred in dismissing the Appellant's application under Section 482 Cr.P.C. and that the cognizance taken by the learned Magistrate, as also the proceedings relating to the Complaint Case No.3714C of 2005, were liable to be quashed.

7. Mr. Rai's submissions were strongly opposed on behalf of the Respondent No.2, Birendra Kumar Sinha. It was submitted that no case had been made out on behalf of the Appellant for interference with the order of the High Court impugned in this appeal. Mr. P.S. Mishra, learned Senior Advocate appearing for the Respondent No.2, reiterated the submissions which were made before the High Court to the effect that Prabhu Singh, the Appellant's vendor, and his brother Sita Ram Singh had in conspiracy with each other sold away the entire lands comprising Survey Plot No.235 and that the Appellant was also a party to such conspiracy. Mr. Mishra urged that despite being part of the conspiracy, the Appellant got Prabhu Singh to transfer the land in question to her and got her name mutated in the concerned jamabandi, which would be apparent from the inquiry report of the application for mutation of Case No.650/7 Year 2001-02 Hulka No.7 dated 5th March, 2002. From the said report, it would be crystal clear that the names of both Sita Ram Singh and Rama Devi were shown in the column for recording the name of the raiyat in respect of the jamabandi. Mr. Mishra submitted that the same would indicate a deep-rooted conspiracy hatched by the said Sita Ram Singh and his brother Prabhu Singh and Rama Devi, to defraud and cheat the Respondent No.2 by executing a sale deed after obtaining the full consideration, despite having knowledge that the land in question had already been transferred earlier by Sita Ram Singh to another party.

8. In addition to the above, Mr. Mishra denied the genuineness of the Deed of Sale executed by Rama Devi in favour of the Respondent No.2 in view of the observations made by the High Court in its impugned order indicating that Prabhu Singh, the Appellant's vendor had attested the sale deed despite having full knowledge of the earlier transactions in respect of the lands in question.

9. Mr. Mishra submitted that the High Court had rightly held that the question of genuineness of the documents and the intention of the Appellant, Sita Ram Singh and Prabhu Singh were required to be decided on evidence in the backdrop of the conspiracy alleged by the Respondent No.2, which could only be done by holding a full-fledged trial.

10. Having considered the submissions made on behalf of the respective parties and having considered the documents placed before us and also the Courts below, we do not find any substance in Mr. Mishra's submissions on behalf of the Respondent No.2. From the materials produced before us, no link has been established between Prabhu Singh and the Respondent No.2. If at all the Respondent No.2 has any grievance in respect of the sale deed which had been executed in his favour by the Appellant, it could be against Prabhu Singh and not the Appellant. If we were to accept Mr. Mishra's submissions, then it was the Appellant Rama Devi who had been cheated by her vendor, Prabhu Singh, who had sold her the property in question, although, the same is alleged to have been the subject matter of an earlier sale effected by his brother, Sita Ram Singh. The veracity of the Appellant's story may be gauged from the fact that after having purchased the suit property from Prabhu Singh by a duly registered deed of sale, she applied to the concerned authority of Phulwarisharif Circle for mutation of her name in respect of the jamabandi in which Survey Plot No.235 had been included and the property continued to be mutated in her name till such time as she transferred the same to the Respondent No.2. There can be no reason, as suggested by Mr. Mishra, for the Appellant to have obtained the sale deed in her name from Prabhu Singh with the intention of cheating the Respondent No.2. In fact, no link had at all been established between the sale deeds executed by Sita Ram Singh in respect of mutated property and the Appellant which could have given rise to suspicion, if any, of a conspiracy between herself and her vendor and his brother Sita Ram Singh, with the intention of cheating the Respondent No.2.

11. If the Respondent No.2 has been prejudiced by the fact that the Appellant had executed a sale deed in his favour in respect of a plot of land which had already been the subject matter of a previous transfer, he can at best question such transfer and claim damages in respect thereof from the vendor of the Appellant by way of appropriate damages, but an action in the Criminal Court would not lie in the absence of any intention to cheat and/or defraud the Respondent No.2.

12. We, therefore, have no doubt in our minds that the Appellant, Rama Devi, cannot be made responsible for the circumstances which followed the sale effected by the Appellant in favour of the Respondent No.2 and the filing of such a criminal complaint was nothing more than an attempt to pressurize the Appellant into making a settlement.

13. We, therefore, have no hesitation in setting aside the order passed by the High Court on 20th December, 2006, in Crl. Misc. No.19975 of 2006, which has been impugned in this appeal. Consequently, Complaint Case No.3714C of 2005 and the proceedings initiated on the basis thereof by the Sub-Divisional Judicial Magistrate, Patna, are also quashed.

14. The appeal, therefore, succeeds and is allowed.