dedol-hf/india-case-legal-rag huggingface dataset:
and  that it was nothing more in substance than an  arrange-
ment for the mode of enjoyment of the family property  which
did not alter the course of descent.
    The  evidence in the present case is trivial and  incon-
clusive and from the documents above mentioned no  intention
can  be deduced on the part of the junior members or on  the
part  of  any other member of the family of  disrupting  and
dividing  the  family  and renouncing  their  expectancy  of
succession.  On the other hand, the statements made in  1880
and 1800 by the members of the family clearly indicate  that
none  of them had any intention of giving up his  rights  of
heirship to the zamindari. There was no change of this frame
of  mind  at  any later stage  of  the  family  arrangement.
Sundara  Pandiya  on the 9th January, 1889,  clearly  stated
that the wish of the family was that the widow should be  in
charge  of  the estate and after her the  next  heir  should
succeed  and that it was Kandasami.  Kandasami said that  he
was the next
264
heir,  the family being undivided.  In the  compromise  this
statement  was reiterated.  Their intention was to  preserve
their rights to take the zamindari if the line of  Kandasami
became extinct.
     Mr. Pathak then put his ease from a different point  of
view.   He urged that Kandasami had the power  to   alienate
'the zamindari or any part of it and by an act of alienation
he  could  defeat the right of survivorship vesting  in  the
other  members   to claim the zamindari on  failure  of  his
line.   Similarly  he said he could  divide  the  impartible
estate amongst the different members of the family and  that
is  what  he must be presumed to have done  in  the  present
'case.  The argument, though plausible, is fallacious.   The
right  to  bring about a partition of an  impartible  estate
cannot  be  inferred from the power of alienation  that  the
holder  thereof may possess.  In the case of  an  impartible
estate  the power to divide it amongst the members does  not
exist,  though  the power in the holder to  alienate  it  is
there  and from the existence of one power the other  cannot
be  deduced,  as it is destructive of the  very  nature  and
character  of  the  estate and makes  it  partible  property
capable of partition.
     It  seems to us that Kandasami instead of intending  to
separate  from the family was by his  actions  consolidating
the  family  unity.  By the family arrangement he  no  doubt
successfully  got himself declared as the next person  enti-
tled  to hold the joint family zamindari, but he evinced  no
intention  of converting it into his own separate  property:
He preserved the estate for the family by saving it from the
attack of the widow who wanted to take it under the will  of
her husband and antagonistically to the family.  By the suit
which  he  brought and which was eventually  compromised  he
successfully avoided that attack on the family estate at the
sacrifice of his right of enjoying it during the lifetime of
the widow.  He also by this arrangement safeguarded  himself
against  the  attack of Sundara Pandiya on his title  as  an
heir.   By his act the rule of descent of lineal  primogeni-
ture  prevailing in the family with regard to the  zamindari
was firmly
265
established. It would be unjust and uncharitable to conclude
from the circumstances that the actions of Kandasami in 1890
were in any way hostile to the interests of the family.   As
he was  throughout acting for the benefit of the family  his
actions  were  approved by all the members and  they  got  a
provision  made for themselves for their maintenance in  the
arrangement.  In the suit that he filed against  Kamuluammal
he  in  unambiguous terms alleged that he was  claiming  the
zamindari  as a member of the undivided Hindu family and  it
was in that status that he made the compromise with her  and
agreed to obtain possession of the estate after her death.
    After  Kandasami's  death' when the  zamindari  came  by
descent to Kamaraja II, he also followed in the footsteps of
his  ancestor.  During the period of his stewardship of  the
estate  he  tried to implement it by recovering  the  pannai
lands which under the compromise had gone out of the  estate
to  Kamulu  absolutely.  He was successful  in  his  efforts
though  as a result of the decision in the present case  his
labours in this direction have proved futile as the  release
deed has been held to be vitiated by fraud.
    For the reasons given above we hold that there exist  no
satisfactory  grounds for holding that the arrangement  made
in   1890 evidences a partition amongst the members  of  the
joint  family  or  proves an intention on the  part  of  the
junior members of the family to renounce their expectancy of
succession  by  survivorship on failure of male  lineal  de-
scendants  in the second branch of the family. The  question
whether there was separation among the members of the family
is primarily a question of fact and the courts below  having
held  that it is not proved, there are no valid grounds  for
disturbing  that finding. Chinnathayi's claim  therefore  to
the zamindari must be held to have been rightly disallowed.
    As regards the claim of Kulasekara to the zamindari,  it
has  been disallowed in the two courts below on  the  ground
that the deed of release, Exhibit P-17,
35
266
does  not extinguish the right of survivorship of the  third
branch  to  take the estate on the  second  branch  becoming
extinct and that the document could not be read as  evidenc-
ing an intention on the part of Sundara Pandiva to surrender
the  right of succession of his branch. It has been  further
held  that the release was   not executed in favour  of  the
head of the family or in   "favour of all the members of the
family  in order to be operative as a valid  relinquishment.
There can be no doubt that a member of a joint family owning
an impartible estate can on behalf of himself and his  heirs
renounce  his right of succession; but any such  relinquish-
ment must operate for the benefit of all the members and the
surrender  must  be  in favour of all the  branches  of  the
family, or in favour of the head of the family as represent-
ing  all its members.  Here the deed was executed in  favour
of  the  widow of a deceased copgrcener who as  such  was  a
stranger  to  the coparcenary, the family  being  admittedly
joint at the death of Kamaraja I.  It was contended that  in
view  of the attitude taken by the parties before  the  High
Court that the deed of release and the compromise  evidenced
only one arrangement to which all the members were in reali-
ty  parties  it  should be held that the  surrender  of  his
rights  by Sundara Pandiya was made in favour of  Kandasami,
the  head of the family, and it extinguished the  rights  of
the third branch in the family zamindari.  We think,  howev-
er,  that  Kandasami  in dealing with  Sundara  Pandiya  was
safeguarding his own right of succession against the  attack
personally directed against him and was successful in buying
him off by agreeing to hand over to him a village.  Both  of
them  were  claiming  headship of the  family  on  different
grounds and both were asserting that the zamindari  belonged
to the joint family.  In the compromise Kandasami was acting
for  his  own benefit and was not making  any  bargain  with
Sundara Pandiya on behalf of the family. The family as  such
could  not  have been prejudiced in any way by  the  circum-
stance that succession went to one or the other. Be that  as
it may, we think the decision
267
of this case can be made to rest on a more solid  foundation
than furnished by the considerations set out above.
    The  whole  emphasis  of  Mr. Raghavan  who  represented
Kulasekara  was   on the words of the  deed   contained   in
clause  5  set  out  above. Sundara Pandiya by  this  clause
stipulated that he will have no right to the property  shown
as belonging to the widow. Sundara Pandiya was then agreeing
that  the widow should retain the zamindari absolutely,  his
mind being affected by the will.  Later on by the compromise
made  in Kandasami's suit what had been given absolutely  to
the  widow was converted into a life estate with the  excep-
tion  of the pannai lands and Kandasami was acknowledged  as
the  rightful heir. The recitals in the release deed  there-
fore  have to be read in the light of the terms  and  condi-
tions  of  the deed of compromise and the  proper  inference
from  these is that Sundara Pandiya relinquished his  rights
to  succeed to the zamindari immediately as  the  seniormost
member  of the family but that he did not renounce his  con-
tingent  right  of succeeding to it by survivorship  if  and
when  the occasion arose.  It is well settled  that  general
words of a release do not mean release of rights other  than
those  then  put up and have to be limited  to  the  circum-
stances which were in the contemplation of the parties  when
it was executed: vide Directors etc. of L. & S.W. Ry. Co. v.
Richard  Doddridge Blackmore (1).  In that case it was  said
that general words in a release are limited to those  things
which  were  specially in the contemplation of  the  parties
when  the  release was executed.  This rule is good  law  in
India  as  in England.  The same rule has  been  stated   in
Norton  on  Deeds  at page 206 (2nd Ed.) thus :--
    "The  general words of a release are limited  always  to
that  thing or those things which were specially in     con-
templation  of the parties at the time when the release  was
given, though they were not mentioned in the recitals."
(1) L.R. 4 H.L. 610.
268
    In  Hailsham's  Edition  of Halsbury's Laws of  England,
Vol. 7, at para 345 the rule has been stated in these  terms
:--
      "General words of release will be construed with refer-
ence  to  the surrounding circumstances and  as  being  con-
trolled by recitals and context so as to give effect to  the
object  and purpose of the document.  A release will not  be
construed as applying to facts of which the creditor had  no
knowledge at the time when it was given."
     In   Chowdhry   Chintaman  Singh   v.   Mst.   Nowlukho
Kunwari(1),  where the document  was drafted in  almost  the
same  terms  as Exhibit P-17, it was said  that  though  the
words  of the petition of compromise were capable  of  being
read as if the executants were giving up all rights whatever
in the taluka of Gungore, yet in the opinion of their  Lord-
ships the transaction amounted to no more than an  agreement
to waive the claim to a share in and to the consequent right
to  a partition of the taluka and there was no intention  to
change  the character of the estate or the mode in which  it
was  to  descend.   The parties in the year  1890  were  not
thinking  of  their future rights of  survivorship  at  all.
What  Sundara  Pandiya must be taken to have  said  by  this
release  was "I am giving up my present rights as  a  senior
member in favour of Kandasami whom I recognize as the right-
ful  heir to the zamindari  as a member of the  joint  Hindu
family."  Kandasami agreed to give him the village of  Domb-
acheri  in lieu of recognition of his title by him.  It  was
not  within  the ken of the parties then as to what  was  to
happen to  the  zamindari in case Kandasami's line died out.
     For the reasons given we are of the opinion that by the
release  Sundara Pandiya did not renounce his rights or  the
rights  of his branch to succeed to the zamindari by  survi-
vorship in case the line of Kandasami  became  extinct.   We
hold  therefore that
(1) (1874) 2 I.A. 263.
269
Kulasekara's claim was rightly negatived in the courts below
and that of Rajaya was rightly decreed.
    In  the result all these appeals fail and are  dismissed
with costs.
                                  Appeals dismissed.
Agent for the appellant in Civil Appeals Nos. 28 & 29 of
1949, respondent No. 1 in Civil Appeals Nos. 30, 32 & 33  of
1949 and respondent No. 2 in Civil Appeal No. 31 of 1949 and
for  Respondent No. 3 m Civil Appeal No. 31 of 1949:  M.S.K.
Sastri.
    Agent  for the appellant in Civil Appeals Nos. 31 to  33
of  1949, respondent No. 1 in Civil Appeals Nos. 28,  29  of
1949  and respondent No. 2 in Civil Appeal No. 30  of  1949:
M.S.K. Aiyangar.
Agent for the appellant in Civil Appeals Nos. 30, 89 and
90 of 1949, respondent No. 1 in Civil Appeal No. 31 of  1949
and  respondent No. 2 in Civil Appeals Nos. 28, 29, 32 &  33
of 1949: S. Subrahmanyam.
    Agent for the respondents Nos. 1 and 2 in Civil  Appeals
Nos. 89 and 90 of 1949: V.P.K. Nambiyar.
PETITIONER:
SURAJPAL SINGH AND OTHERS
        Vs.
RESPONDENT:
THE STATE
DATE OF JUDGMENT:
20/12/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
BOSE, VIVIAN
CITATION:
 1952 AIR   52            1952 SCR  193
 CITATOR INFO :
 R          1953 SC 459  (10)
 R          1954 SC 645  (2)
 R          1955 SC 585  (4)
 R          1955 SC 807  (5)
 F          1956 SC 217  (2,34)
 R          1956 SC 425  (5)
 R          1956 SC 643  (39)
R          1957 SC 216  (12)
 R          1957 SC 589  (16)
 RF         1961 SC 715  (7)
 RF         1962 SC 439  (8)
 RF         1963 SC 200  (17)
 F          1972 SC 116  (22)
 R          1973 SC2622  (7)
 F          1974 SC 606  (6)
ACT:
    Criminal Procedure Code (Act V of 1898), s.  417--Appeal
against acquittal--Interference--Guiding principle.
HEADNOTE:
    It is well settled that in an appeal under s. 417 of the
Criminal  Procedure Code, the High Court has full  power  to
review  the evidence upon which the order of  acquittal  was
founded. But it is equally well settled that the presumption
of  innocence  of the accused is further reinforced  by  his
acquittal  by the trial Court and the findings of the  trial
Court  which had the advantage of seeing the  witnesses  and
hearing  their evidence can be reversed only for  very  sub-
stantial and compelling reasons.
194
JUDGMENT:
    CRIMINAL  APPELLATE  JURISDICTION:  Criminal Appeal  No.
16  of 1950.  Appeal by special leave from the judgment  and
order  dated 8th May, 1947, of the High Court of  Judicature
at Allahabad (Sankar Saran and Akbar Hussain JJ.) in  Crimi-
nal Appeal No. 80 of 1946.
    S.P. Sinha (G.C. Mathur, with him), for the appellant.
K.B. Asthana, for the respondent.
1951. December 20.  The Judgment of the Court was deliv-
ered by
FAZL  ALl  J.--This is an appeal against a judgment  of  the
High Court of Judicature at Allahabad reversing the decision
of  the Sessions Judge of Aligarh in a criminal  case.   The
appellants were tried by the Sessions Judge on charges under
section 302 read with section 149, section 148, sections 325
and 326 read with section 149, and section 201 of the Indian
Penal  Code,  but were acquitted.  On appeal  by  the  State
Government,  the  High Court reversed the  Sessions  Judge's
decision, and convicted the appellants and sentenced them to
transportation for life under section 302 read with  section
149, to five years' rigorous imprisonment under sections 325
and  326 read with section 149, and to two  years'  rigorous
imprisonment under section 147 of the Indian Penal Code, all
the sentences being made to run concurrently. The appellants
thereafter  applied to the Privy Council for special  leave,
which was granted on the 28th October, 1947.
    The  facts which were put before the court on behalf  of
the prosecution may be briefly stated as follows. There is a
plot No. 518 in Nagaria Patti Chaharum, village Shahgarh  in
the district of Aligarh which is about 30 bighas in area and
is known as the "teesa" field. This plot was the "sir"  land
of several landlords including Mst. Bhagwati Kuer and  Ratan
Singh and had been let out  to  certain tenants.   In  1944,
Mst. Bhagwati Kuer, Ratan Singh and their co-sharers filed a
suit for the ejectment of the tenants, and the
195
suit was decreed. On the 7th June, 1945, possession over the
plot was delivered by the Amin to Surajpal Singh, the  first
appellant,  who was the mukhtar-i-Am of Mst. Bhagwati  Kuer.
It  was contended on behalf of Surajpal Singh that  he  took
possession  on  behalf of all the  co-sharers,  but  certain
statements  made by Ratan Singh in his evidence do not  sup-
port this contention.  However that may be, it appears  that
on  the 17th June, 1945, Ratan Singh reported to the  police
that  he  had  sent his labourers to  irrigate  the  "teesa"
field, and while they were irrigating it Surajpal Singh  and
certain other persons came and tried to stop the  irrigation
and damaged the ploughs of Ratan Singh. On the 18th June, at
about 7 A.M., the occurrence which is the subject-matter  of
the present trial took place. The prosecution version of the
occurrence  was  that  while Ratan  Singh's  labourers  were
working  in  the field under the supervision of  one  Behari
Singh,  the  appellants with many other persons  came  armed
with guns, spears and lathis, and some of the members of the
appellants' party entered the field, cut off the nosestrings
of the bullocks and abused and assaulted the labourers, most
of  whom  ran away. Thereupon, Deva Sukh, who was  there  to
supply water to the labourers, protested and was beaten with
lathis.   At that point of time, Behari Singh and 10  to  15
persons  came  and  fight took place  between  the  parties.
During  the  fight,  one of the  accused  persons,  Rajendra
Singh,  a  young lad, fired his gun twice in  the  air,  and
thereafter  Surajpal Singh took the gun from him  and  fired
two  shots hitting Nawab Mewati, who  died  instantaneously,
and  Behari  Singh, who died later in the day.  Three  other
persons,  Zorawar, Rajpal and Lakhan also received  gun-shot
injuries.   Sometime  later, Surajpal Singh along  with  the
other three appellants came to the spot and removed the dead
body  of Nawab in a cart.  The body was thrown into a  river
and  was recovered on the 20th June, 1945. After  investiga-
tion  25 persons including the appellants were sent  up  for
trial.     After hearing the evidence in the case, the  Ses-
sions Judge delivered judgment on the 20th February, 1946.
196
He  held  that the "teesa" field was in  the  possession  of
Surajpal Singh, that Behari Singh and Ratan Singh's men were
aggressors  and  wished to take forcible possession  of  the
field, that when resisted they had attacked the  appellants'
party,  that  the person who fired the gun had  done  so  in
self-defence and not with a view to killing Behari Singh and
Nawab Mewati, and that the evidence adduced by the  prosecu-
tion was so unsatisfactory that it was unsafe to convict the
accused upon it. As to the charge of concealing evidence  of
the  offence  of murder by the removal of the dead  body  of
Nawab,  the  Sessions Judge expressed the  opinion  that  in
order  to convict a person on that charge it must be  proved
that  the  offence,  the evidence of which  the  accused  is
alleged  to have caused to disappear had actually been  com-
mitted,  but since in the present case the charge of  murder
was not proved the accused could not be convicted for having
caused  disappearance  of evidence connected  with  it.  The
Judge  also  held  that the evidence  being  unreliable  the
charge  under section 201 of the Indian Penal Code  had  not
been established beyond reasonable doubt.
    The  High Court delivered its judgment on the  8th  May,
1947, allowing the appeal of the State Government.   Shortly
stated, the conclusion arrived at by the High Court was that
Ratan Singh had as much right to the possession of the field
as  Bhagwati  Kuer, that both parties were  trying  to  take
exclusive  possession of the field, that both  parties  were
prepared  for  all contingencies to  vindicate  and  enforce
their  rights,  and hence the question  of   possession  was
wholly  immaterial and no right of private defence could  be
successfully pleaded by the appellants.
    A  perusal  of the two judgments before  us  shows  that
while the Sessions Judge took great pains to discuss all the
important  aspects of the case and to record his opinion  on
every  material point, the learned Judges of the High  Court
have  reversed  his  decision without  displacing  the  very
substantial  reasons given by him in support of his  conclu-
sion.   The difference in the treatment of the case  by  the
two courts below
197
is particularly noticeable in the manner in which they  have
dealt with the prosecution evidence.  We find that while the
Sessions  Judge  took up the evidence of  each  witness  and
recorded  his finding with regard to his  credibility  after
discussing  the minutest details of the evidence,  all  that
the  learned Judges of the High Court have to say about  the
prosecution evidence as a whole is as follows :-
    "In  Prag Dat's case their Lordships observed: usual  in
cases  of  this kind the police have found it  difficult  to
secure independent testimony of what did take place.   Those
of  the  villagers  who were present and  looking  on  would
probably by sympathy and bias be so attached to one or other
of  the disputing parties that it would be hopeless  to  get
disinterested and reliable evidence from them.'
    This  difficulty the police find in most riot cases  and
this  case is not free from it.  But as in Prag Dat's  case,
in this case there are four witnesses, viz., Deo Sukh,  Rori
Singh,  Ram Singh, and Ratan Singh, who could  be  characte-
rised as independent witnesses and they support the case for
the prosecution, in the main. In our judgment their testimo-
ny  is  on the whole worthy of credence  and  sufficient  to
justify the conviction of the respondents."
    In view of the summary treatment of the evidence by  the
High Court, we had to read the evidence adduced in the  case
with great care, and what we find is that the four  witness-
es, whose evidence has been accepted by the High Court,  are
just  the  persons against whom very serious  criticism  was
offered  by the Sessions Judge.  Of these  witnesses,  Ratan
Singh not being an eye-witness may be ruled out.  As to  the
remaining  witnesses, we are on the whole inclined to  agree
with the view expressed by the Sessions Judge. According  to
the  Sessions  Judge,  the manner in  which  Deva  Sukh  was
brought into the picture and the circumstances attendant  on
his  evidence,  furnish strong reasons.  for  rejecting  the
prosecution  version.  What has been held is that the  whole
case of the prosecution
26
198
that  Deva Sukh had received injuries in the course  of  the
alleged occurrence was false and his injuries "were made  up
so as to create evidence of private defence" to be  utilized
by  the  prosecution  to meet the charge  of  having  caused
injuries  to the members of the appellants' party.   It  has
been  established that at least four persons on the side  of
the accused had received injuries.  Mahindarpal had received
no less than 16 injuries, and his condition was serious  for
some  time.  Karan Singh had 12 injuries, one of  which  was
grievous.  Hari  Singh had received 7 injuries  including  a
grievous  injury,  and  Nikka Singh also  was  injured,  his
injury having been noticed by the investigating  sub-inspec-
tor.
In the prosecution evidence, it was stated that many  of
the  accused  persons were armed with lathis  and  had  used
them, and it would be strange if it was not proved that  any
of  the persons on their side had any injuries  attributable
to  lathis.  It has been established that the  four  injured
persons  of Ratan Singh's party, viz., Rajpal Singh,  Lakhan
Singh,  Behari  Singh and Zorawar Singh, had  only  gun-shot
wounds.  A serious question which arises in this case is  at
what  stage  the gun was used, and whether it  was  used  in
self-defence after the members of the appellants' party were
assaulted  with lathis or it was used before they  were  as-
saulted.
    The  prosecution witnesses had to admit that at first  a
gun  was fired twice in the air and then the  actual  firing
took place.  This version of the firing lends support to the
defence  story that the gun was fired in  self-defence  when
Ratan  Singh's men attacked members of the accused's  party.