dedol-hf/india-case-legal-rag huggingface dataset:
Office  but the seamen are engaged by the shipowners or  the
Captains.  To a certain extent, the recruitment is regulated
by the Maritime Board, but it is a misnomer to say that  the
seamen are supplied to the owners by the Board or by any  of
its officers.  In his written statement found at page 28  of
the  printed  book  the accused has stated, and  it  is  not
controverted anywhere, that the system of selection of  crew
through the agency of Serangs was brought to an end owing to
the opposition of the seamen themselves, who alleged that it
resulted  in widespread corruption as the Serangs  recruited
only those who paid them heavily.
    It is fantastic for the prosecution to suggest that  Re.
1 levied out of the seaman's wages after he signs the agree-
ment  of  employment amounts to  remuneration  received  for
providing the man with employment.  The remuneration paid to
the  accused  which is over Rs. 2,000 a month is by  way  of
salary from the Calcutta Liners' Conference under whom he is
a paid Secretary.   The Calcutta Maritime Board receives Re.
1  per seaman from the shipowners' association, but this  is
by  way  of contribution towards the expenses of  the  Joint
Supply Office of the Board.  This is made perfectly clear in
the  evidence  given on commission by Mr.  C.P.  Srivastava,
Officer  on Special Duty, Ministry of Commerce,  New  Delhi,
and of
291
Mr. Dikken examined on the side of the prosecution who  says
that  the contribution is made to meet the running  expenses
of  the Joint Supply Office  and Maritime Board.  Mr.  Gold-
well  of James Finlay & Co., sixth witness for the  defence,
has  stated that the Calcutta Maritime Board and  the  Joint
Supply   Office  are  financed by the Liners  and  that  the
accused has nothing to do with the engagement of the seamen.
There is also a finding of the Chief Presidency  Magistrate,
which  has  not been set aside, that the allegation  of  the
complainant  that the accused received Re. 1 from him  prior
to registration of his name in the Joint Supply Office,  has
not been substantiated.
    It  is  evident on the facts that the accused  does  not
engage  or supply any seamen and does not demand or  receive
directly  or indirectly any remuneration for  providing  any
person with employment as a seaman. The facts leave no  room
for  any doubt that the prosecution has failed to  establish
its case.
Mr.  Justice Sen says "I fully realise that,  ordinarily
this Court ought not to interfere with orders of  acquittal.
It should do so only on exceptional grounds." It is a matter
of  some  regret that this realization by him of  the  very.
limited  nature of the revisional jurisdiction was not  car-
ried  into  effect but resulted in an  order  directing  the
retrial  of a man for a third time for offences which  could
not be said to have been made out even prima facie.
    The revisional jurisdiction conferred on the High  Court
under  section 439 of the Code of Criminal Procedure is  not
to  be  lightly exercised, when it is invoked by  a  private
complainant against an order of acquittal, against which the
Government has a right of appeal under section417. It  could
be  exercised only in exceptional cases where the  interests
of public justice require interference for the correction of
a manifest illegality, or the prevention of a gross  miscar-
riage  of  justice.   This jurisdiction  is  not  ordinarily
invoked  or used merely because the lower court has taken  a
wrong view of the law or misappreciated the evidence
38
292
on  record. As already pointed out, there has been  no  such
error in the present case; on the other hand, it seems to us
that  on both the previous occasions, the  Chief  Presidency
Magistrate  was  right in holding that the accused  was  not
guilty of any offence under sections 25 and 26 of the Indian
Merchant Shipping Act.
    The order of the High Court is set aside and that of the
Chief  Presidency Magistrate is restored. The  accused  will
stand acquitted of the charge.
                                      Order set aside.
Agent for the appellant: P.K. Chatterjee.
Agent for the respondent: 1. N. Shroff for P.K. Bose.
PETITIONER:
ARJAN SINGH alias PURAN
        Vs.
RESPONDENT:
KARTAR SINGH AND OTHERS.
DATE OF JUDGMENT:
02/03/1951
BENCH:
AIYAR, N. CHANDRASEKHARA
BENCH:
AIYAR, N. CHANDRASEKHARA
FAZAL ALI, SAIYID
MUKHERJEA, B.K.
CITATION:
 1951 AIR  193            1951 SCR  258
 CITATOR INFO :
 RF         1963 SC1526  (9)
 F          1974 SC2069  (5)
 RF         1976 SC1053  (10)
ACT:
     Civil  Procedure Code, 1908, O. XLI, r.  27--Additional
evidence  --Improper admission--Finding based on  such  evi-
dence--Whether  conclusive--Interference--Punjab Custom  Act
(H  of 1920), s. 7-Suit to contest alienation of  non-ances-
tral property--Maintainability.
HEADNOTE:
     The discretion to receive and admit additional evidence
in  appeal  is not an arbitrary one but is  a  judicial  one
circumscribed by the limitations specified in O. XLI, r. 27,
of the Civil Procedure Code, and if additional evidence  was
allowed to be adduced contrary to the  principles  governing
the  reception of such evidence, it would be a case  of  im-
proper  exercise of discretion, and the additional  evidence
so  brought  on the record will have to be ignored  and  the
case decided as if it was non-existent.
259
    The  legitimate occasion for admitting  additional  evi-
dence  in  appeal is when on examining the  evidence  as  it
stands some inherent lacuna or defect becomes apparent,  not
where  a discovery is made outside the court, of fresh  evi-
dence,  and an application is made to import it.   The  true
test  is  whether the appellate court is able  to  pronounce
judgment  on  the materials before it, without  taking  into
consideration   the   additional  evidence  sought   to   be
adduced.Kessowji Issur v.G. 1. P. Railway (34 I.A. 115)  and
Parsotim v. Lal Mohan (58 I.A. 254) referred to.
    Though ordinarily a finding of fact, however  erroneous,
cannot  be challenged in second appeal, a finding  which  is
arrived  at on the basis of additional evidence which  ought
not  to have been admitted and without any consideration  of
the  intrinsic  and palpable defects in the nature  of  such
evidence cannot be accepted as a finding which is conclusive
on appeal.
    Under  s.  7  of the Punjab Act II of 1920  no  one  can
contest  an alienation of non-ancestral immoveable  property
on the ground that such alienation is contrary to custom.
JUDGMENT:
CIVIL APPELLATE  JURISDICTION :  Appeal (Civil Appeal No. 31
of 1950) against a judgment and decree dated 28th  February,
1946, of the High Court of Judicature at  Lahore in  Regular
Second Appeal No. 887 of/942.
    Ram  Lal  Anand (Harbans Lal Mittal, with him)  for  the
appellant.
    Bakshi  Tek Chand (P.S. Safeer, with him) for  the'  re-
spondents.
1951.  March 2. The Judgment of the Court was  delivered
by
CHANDRASEKHARA  AIYAR J.--The plaintiff, Arjan  Singh  alias
Puran, brought a suit in the court of the Subordinate Judge,
Jullundur,  against Inder Singh, Kartar Singh and five  oth-
ers,  for  a declaration that a will executed by  the  first
defendant,  Inder Singh, in favour of the second  defendant,
Kartar  Singh,  about  14 years ago was  null  and  void  as
against the plaintiff, who was the first defendant's  rever-
sionary  heir after his death.  The plaint comprised a  half
share of land measuring 395 kanals in the village of Kadduw-
al,
34
260
another  half  share  of land measuring 837  kanals  and  11
marlas  in the village of Pattar Kalan, and four  houses  in
the latter village.  In the pedigree attached to the  plaint
showing  the  relationship  of the  parties,  the  plaintiff
claims Sehja Singh as his 4th ancestor. Jodha Singh and  Jai
Singh  are  shown as Sehja Singh's sons.  Defendant  No.  1,
Inder  Singh, is Jodha Singh's grandson. It is alleged  that
the parties are Jar agriculturists governed by the customary
law  in  matters  of alienation of  ancestral  property  and
succession, and that as a sonless proprietor under this  law
is not competent to make a will in respect of his  ancestral
property,  when there are collaterals up to the 5th  degree,
and  as  the entire property  mentioned in  the  plaint  was
ancestral, the will made by the first defendant in favour of
the second defendant who claimed to have been adopted by the
first  defendant was invalid and ineffectual. Plaintiff  was
born  on 22nd July, 1919, and was a minor when the will  was
made, and so the suit was within time.
    The  suit was contested mainly by the second  defendant,
Kartar Singh, who set up his adoption, and pleaded that  the
properties  were not at all ancestral as regards the  plain-
tiff. Defendants 3 to 7 remained ex parte.
    At the trial, it was admitted that the land situated  in
Kadduwal  was not proved to be ancestral.   The  Subordinate
Judge held that even the land in Pattar Kalan was not  shown
to  be  ancestral  by the evidence adduced on  the  side  of
plaintiff,  as it was found that the common ancestor,  Sehja
Singh,  had  not only two sons called Jodha  Singh  and  Jai
Singh,  but a third son named Pohlo, and that from the  mere
fact that the two sons enjoyed the land in equal shares,  no
presumption could arise that the property was ancestral  and
descended  by  inheritance from the  common  ancestor,  when
nothing  was  known  about the share of the  third  son.  He
recorded  findings in favour of the plaintiff on the  issues
as  to  adoption and limitation, but he also held  that  the
plaintiff had no locus standi to contest the validity of the
adoption as the period of limitation
261
had expired long before he was born. In the result, the suit
was dismissed.
    The  plaintiff preferred an appeal to the court  of  the
District  Judge.  He filed an application under  Order  XLI,
rule'27, and section 151, Civil Procedure Code, for
leave to adduce additional evidence. The document he  wanted
to  be taken on record and considered, and of  which it  was
alleged that he was not aware at the trial, was a kami beshi
statement relating' to Mauza Pattar Kalam, which contained a
note that the third son, Pohlo, gave up his interest in  the
ancestral property in favour of his brothers.  A copy of the
statement  was filed along with the appeal memorandum.   The
application was naturally opposed on behalf of the  contest-
ing  defendants who urged that the plaintiff  appellant  had
ample  opportunity to produce all his evidence in the  lower
court  to prove that the  property  was ancestral  and  that
the  entry  on which reliance was now sought  to  be  placed
appeared on the face of it to be a forged one.  The District
Judge  posted  the application to be heard  along  with  the
appeal itself.  On the 17th March 1942, that is, even before
he heard the appeal, the District Judge allowed the applica-
tion. Referring to the two entries found in the naqsha  kami
beshi  prepared in 1849-50 and the muntakhib asami-war  pre-
pared in 1852, which stated that Pohlo had relinquished  his
ancestral  share,   he  observed: "These two  entries  taken
together, if found genuine, would enable the Court to arrive
at a just conclusion.  It is, therefore, in the interest  of
justice  that  the additional evidence should be let  in.  I
have  taken action under Order XLI, rule 27 (1) (b), of  the
Civil Procedure Code.  This additional evidence would supply
material to remove the defect pointed out in the judgment of
the court below, why two of the sons of Sehja Singh came  to
own equal shares of land of Pattar Kalan in  the presence of
their  3rd  brother".    He permitted the  parties  to  call
evidence  relating to the two documents. Two witnesses  were
examined on the side of  the appellant.  Munshi Pirthi  Nath
is  the  clerk in the D.C's office, Jullundur City,  and  he
brought  the
262
record  of rights for the village Pattar Kalan  prepared  at
the time of the settlement of 1849-50.  Munshi Niaz Ahmad is
the  office Qanungo in the Jullundur Tahsil and  he  brought
the  rauntakhib asami-war of the record of rights  preserved
at the Tahsil Office.  Both of them gave evidence about  the
relevant entries found in the registers.
    The District Judge reversed the decision of the Subordi-
nate Judge and decreed the plaintiff's suit on the  strength
of  this  additional  evidence.  He held  that  the  entries
relied on for the appellant were genuine and not forged  and
that as Pohlo had relinquished his share, the land in  Manza
Pattar  Kalan was ancestral qua the plaintiff.   He  further
found that the suit was not barred and was within time under
article  120  of  the Indian Limitation Act,  but  that  the
adoption  set up by the second defendant was not  true.   As
the  custom of the district did not permit a  proprietor  to
will away any portion of his property, whether ancestral  or
self-acquired,  the  plaintiff had, in the  opinion  of  the
District  Judge, a right to contest the will.  On the  basis
of  these findings, he decreed the plaintiff's suit  in  its
entirety,  including  the lands in the village  of  Kadduwal
which were conceded to be nonancestral and also an area of 4
bighas and 16 biswas of land in Pattar Kalan which,  accord-
ing  to the record of rights, was not in the  possession  of
Jodha Singh and Jai Singh, but with third parties.
    Kartar  Singh, the second defendant, took the matter  on
second appeal to the High Court.  The learned Judges of  the
High Court held that there was nothing to show that the land
in  Pattar Kalan was ancestral and that the  District  Judge
was  not justified in admitting additional evidence  in  the
shape  of the nabsha kami beshi and the muntakhib  asami-war
records.  They  further pointed out that even a  superficial
observation  of  the original documents  led  one irresisti-
bly to the conclusion that the entry regarding  Pohlo giving
up  his share was a subsequent interpolation.  They came  to
the conclusion, therefore, that the entire land situated  in
Pattar Kalan
263
was  also non-ancestral and that the suit should  have  been
dismissed  in toto, inasmuch as under section 7   of Act  II
of 1920, no person is empowered to contest any alienation of
non-ancestral   immoveable property on the ground that  such
alienation   is   contrary  to  custom.   In view  of   this
finding, no  other question arose in the case for  decision.
Leave  was,  however, granted to appeal to  His  Majesty  in
Council and this is how this appeal is now before us.
  It  was strenuously argued by the learned counsel for  the
appellant  that it was not open to the High Court to  inter-
fere with the discretion exercised by the District Judge  in
allowing  additional evidence to be adduced  and that   even
assuming  that  there was an erroneous finding of  fact,  it
must stand final as a second appeal can be entertained  only
on  the  specific grounds mentioned in section  100  of  the
Civil Procedure Code.  There is, however, a fallacy underly-
ing  this  argument.  The discretion to  receive  and  admit
additional evidence is not an arbitrary one, but is a  judi-
cial one circumscribed by the limitations specified in Order
XLI, rule 27, of the Civil Procedure Code. If the additional
evidence  was allowed to be adduced contrary to the  princi-
ples governing the reception of such evidence, it would be a
case of improper exercise of discretion. and the  additional
evidence  so brought on the record will have to  be  ignored
and the case decided as if it was non-existent.  Under Order
XLI,  rule 27, it is the appellate court that  must  require
the  evidence to enable it to pronounce judgment.   As  laid
down by the Privy Council in the well-known case of Kessowji
Issur  v.G. I. P. Railway(1)' "the legitimate  occasion  for
the application of the present rule is when on examining the
evidence  as ii stands, some inherent lacuna or  defect  be-
comes  apparent, not where a discovery is made, outside  the
court,  of  fresh evidence and the application  is  made  to
import it;" and they reiterated this view in stronger  terms
even  in  the later case of Parsotim v. Lal Mohan  (2).  The
true  test,  there fore, is whether the appellate  court  is
able to pronounce
(1) 34 I. A. 115       (2) 58 I. A. 254
264
judgment  on  the materials before it  without  taking  into
consideration the additional evidence sought to be adduced.
    In the present case, there is nothing to show that there
was any lacuna or gap which had to be filled up and that the
appellate  court felt the need for the omission  being  sup-
plied  so that it could pronounce a judgment; to put it  the
other way round, it does not appear, and it was not  stated,
that  the  District Judge felt himself unable to come  to  a
decision  without  copies of the settlement  registers  that
were sought to be put in before him for the first time.   On
the other hand, the District Judge made up his mind to admit
the certified copies of the kami beshi and muntakhib  asami-
war  registers  even before he heard the appeal.  The  order
allowing  the appellant to call the additional  evidence  is
dated 17th March, 1942.  The appeal was heard on 24th April,
1942.  There was thus no examination of the evidence on  the
record and a decision reached that the evidence as it  stood
disclosed a lacuna which the court required to be filled  up
for  pronouncing its judgment.  In the  circumstances,   the
learned Judges of the High Court were right in holding  that
the  District  Judge was not justified  in   admitting  this
evidence  under Order XLI, rule 27.
  Even  conceding that the reception of additional  evidence
was  proper, the District Judge has failed to  consider  the
inherent infirmities of the entries in the settlement regis-
ters relied on. for the appellant and the several criticisms
that could justly be levelled against them for showing  that
they were spurious.  He took the entries to be genuine.  The
only  reason assigned by the learned Judge for treating  the
entries to be genuine and not forged appears to be that  the
records  had  all  along remained  in  proper  custody.   As
against  this  rather  perfunctory remark we  must  set  the
following  observations  of the learned Judges of  the  High
Court:
    "Even  a superficial observation of the  original  docu-
ments  leads  one irresistibly to the conclusion  that  this
entry was a subsequent interpolation.  In
265
naqsha kami beshi there was alrerady a remark in that column
and  the  remark relied upon which has very  awkwardly  been
inserted  there is with a different pen and in  a  different
ink.   It is even impossible to read it  clearly.   Further,
although  there are 2 or 3 other places  where the names  of
Jodha  and  Jai Singh appear, no such remark has  been  made
against them.  It may also be observed that though a  corre-
sponding  remark  appears in the column of sharah  lagan  in
muntakhib   asami-war where it is evidently out of place  in
the  copy  retained in the Tahsil Office, there is  no  such
remark  in the copy which is preserved at the Sadar  Office.
Even  otherwise it does not stand to reason why a remark  to
this  effect should have been made in this column.  The  way
in  which these entries were said to have  been traced  also
throws a lot of suspicion on their genuineness."
    We find ourselves in entire agreement with these  obser-
vations  of the learned Judges.  It is no doubt true that  a
finding of fact, however erroneous, cannot be challenged  in
a  second  appeal,  but a finding reached on  the  basis  of
additional  evidence which ought not to have  been  admitted
and without any consideration whatever of the intrinsic  and
palpable  defects  in the nature of the  entries  themselves
which  raise serious doubts about their genuineness,  cannot
be  accepted as a finding that is conclusive in  second  ap-
peal.
    If  the additional evidence is left out of account,  the
appellant  has  practically no legs to stand on.   There  is
nothing  to  show that the common ancestor Sehja  Singh  was
possessed  of  the Mauza Pattar Kalan properties  which  are
found subsequently entered in the name of two sons in  equal
shares,  with nothing said about the share of the third  son
Pholo.   As a matter of fact, the pedigree table shows  that
there  was a fourth son called Hamira.  If the property  had
been  entered in the registers in the names of all the  sons
in equal shares, there might be some ground, however feeble,
for presuming that the property was ancestral as alleged  by
the plaintiff.  There is nothing to show
266
that  the common ancestor owned the land and that  his  sons
got it from him by inheritance in equal shares.
    The  District Judge was obviously wrong when he  decreed
the plaintiff's suit even with reference to the     lands in
Kadduwal  conceded  to  be non-ancestral and   the  land  in
Khasra No. 2408 measuring 4 bighas and 16 biswas, which  was
not  in the possession of the two sons Jodha Singh  and  Jai
Singh.  He was equally wrong  in holding that the  customary
law  which governed the parties did not permit the owner  to
will away any portion of the property, whether ancestral  or
self-acquired;  this is contrary to section 7 of Punjab  Act
II of 1920, which is in these terms:
    "Notwithstanding  anything to the contrary contained  in
section  5, Punjab Laws Act, 1872, no person  shall  contest
any  alienation of non-ancestral immovable property  or  any
appointment  of  an heir to such property  on   the   ground
that such alienation or appointment is contrary to custom."
     No other point arises in this appeal which fails and is
dismissed with costs in all the courts.
Appeal dismissed.
Agent for the appellant: Ganpat Rai.
Agent for the respondents: S.P. Varma.
PETITIONER:
UJAGAR SINGH
        Vs.
RESPONDENT:
THE STATE OF THE PUNJABandJAGJIT SINGHv.THE STATE OF THE PUN
DATE OF JUDGMENT:
23/02/1951
BENCH:
AIYAR, N. CHANDRASEKHARA
BENCH:
AIYAR, N. CHANDRASEKHARA
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
CITATION:
 1952 AIR  350            1952 SCR  756
 CITATOR INFO :
 RF         1957 SC 281  (6)
 RF         1964 SC 334  (9)
 D          1967 SC1797  (7)
RF         1968 SC 327  (5)
 R          1972 SC2431  (5)
 R          1972 SC2481  (6)
 F          1973 SC 844  (2)
 RF         1973 SC 897  (6)
 E&R        1974 SC1214  (7)
 F          1982 SC1539  (5)
 R          1982 SC1543  (11)
 RF         1990 SC 231  (9)
 F          1990 SC1086  (13)
ACT:
    Preventive Detention Act (IV of 1950), ss. 3, 12--Deten-
tion order--Non-specification of period of detention--Ground
supplied  vague  and same as in  earlier  order--Particulars
supplied  after  4 months--Legality  of  detention--Duty  to
supply  particulars'as  soon as may be --Form  of  detention
order---Order signed by Home Secretary--Validity.
HEADNOTE:
    Non-specification  of any definite period in a  detention
order made under s. 3 of the Preventive Detention Act, IV of
1950, is not a material omission rendering the order invalid
in  view of the provisions contained in clauses (4) (a)  and
(7) (a) of Art. 22 the Constitution and s. 12 of the Act.
An  order  of detention which expressly states  that  the
Government  of  the  State concerned was  satisfied  of  the
necessity of
757
making  such an order and that it was made by the  order  of
the Governor is not defective merely because it is signed by
Home Secretary.
     Communication  of the grounds of the order need not  be
made  directly by the authority making the order but may  be
made through recognized channels prescribed by the  adminis-
trative rules of business.
The  past conduct or antecedent history of a person  can
be taken into account in making a detention order, and as  a
matter  of  fact, it is largely from  prior  events  showing
tendencies or inclinations of a man that an inference  could
be drawn whether he is likely even in the future to act in a
manner  prejudicial to the maintenance of public order.   If
the  authority making an order is satisfied that the  ground