21. For all the above reasons we hold that the Appellate Tribunal under the Andhra Pradesh General Sales Tax Act, 1957, has no jurisdiction to dismiss an appeal filed under Section 21 of the Act for default of appearance of the appellant or his counsel. Clause 9(1) of the Regulation of the Andhra Pradesh General Sales Tax Appellate Tribunal Regulations, 1957, contained in Memorandum No. 34908-B/S/57-3 Revenue, dated 24th July, 1957, in so far as it empowers the appellate authority to dismiss an appeal for default is repugnant to Section 21(4) of the Act and ultra vires of the power of the Tribunal under Section 3(4) read with Section 21(4) of the Act and is, therefore, struck down. The Tribunal must, therefore, be held to have acted without jurisdiction in dismissing the appeal for default on 29th June, 1964, and to have failed to exercise a jurisdiction vested in it in not disposing of the appeal filed by the petitioner herein on merits. The order of the Tribunal dated 29th June, 1964, and its subsequent order dated 17th April, 1965, dismissing the petition are accordingly quashed and the Tribunal is directed to dispose of the appeal filed by the petitioner herein on merits in accordance with law in the light of the observations made above.

22. The writ petition, therefore, succeeds and is accordingly allowed with costs.    Advocate's fee Rs. 200.


Annamdevula Srinivasa Rao And ... vs State Of Andhra Pradesh And Etc. on 11 August, 1995

ORDER


1. In all these criminal petitions, a short but interesting and importing question of law arises for consideration of this Court as to whether this Court, in exercise of its inherent jurisdiction under Section 482 Code of Criminal Procedure (for short 'the Code'), can direct the subordinate criminal courts to accord permission to compound an offence which is otherwise non-compoundable under the Code ?
2. Directions are sought from this Court to compound variety of non-compoundable offences such as Section 138 of the Negotiable Instruments Act (Criminal Petitions Nos. 3460 and 3461 of 1994), Section 498-A of the Indian Penal Code (Crl.P. No. 277 and 932 of 1994 and 2633 and 2685 of 1995), Sections 494 and 498-A, I.P.C. (Crl.Ps. Nos. 748 of 1994 and 1662 of 1995), Section 307 of Indian Penal Code (Crl.M.P. No. 1182/94), Section 452, I.P.C. (Crl. Petns. Nos. 2951 and 2952 of 1995).


3. In Crl.P. No. 277 of 1994, the petitioner-accused was already convicted and sentenced by the Judicial Magistrate of First Class, Sattenapalli by judgment dated 8-4-1993 for the offence u/s. 498-A, I.P.C. and Crl.A. No. 36 of 1993 preferred by him was pending before the learned Sessions Judge, Khammam. In Crl. Petitions Nos. 3460 and 3461 of 1993, the petitioners-accused in the said cases were convicted and sentenced to suffer imprisonment for one year and pay fine for the offence punishable under Section 138 of the Negotiable Instruments Act by the II Additional Judicial Magistrate of First Class, Rajahmundry in C.C. Nos. 74 and 75 of 1990 and the appeals - Cr.A. Nos. 121 and 122 of 1991 preferred by them are pending before the learned II Additional Sessions Judge, Rajahmundry. Similarly in Crl.P. No. 1182 of 1994 3rd petitioner who is the accused in S.C. No. 327 of 1992 was convicted and sentenced to suffer rigorous imprisonment for 7 years by the Assistant Sessions Judge, Karimnagar for the offence under Section 307, I.P.C. against the accused preferred Crl.A. No. 6 of 1993 and the same is pending before the II Additional Sessions Judge, Karimnagar.
4. Admittedly, the offences which are subject-matter of the proceedings in the Courts below are non-compoundable offences.
 CAN THIS COURT GIVE DIRECTIONS TO THE SUBORDINATE CRIMINAL COURTS TO PERMIT COMPOUNDING OF OFFENCES WHICH ARE OTHERWISE NON-COMPOUNDABLE UNDER SECTION 482, Cr.P.C. ?


5. In view of the importance of the question of law involved, I have requested Shri C. Padmanabha Reddy, learned Senior Counsel to assist the Court as Amicus Curiae and accordingly, the learned Senior Counsel assisted the Court.
6. The learned Senior Counsel submits that the High Court, in exercise of its inherent jurisdiction under Section 482 of the Code cannot direct compounding of offences which are otherwise non-compoundable. The learned counsel submits that in the absence of specific provisions, no Court can grant permission to compound any non-compoundable offence. It is submitted that the compounding of offences is specifically regulated by the Code of Criminal Procedure and any direction in this regard by the High Court to compound the offence which is non-compoundable, would be against the public policy and therefore wholly barred.
7. Before adverting to the submissions made by the learned Senior counsel, it would be appropriate to make a brief survey with regard to the nature, scope and power of this Court under Section 482 of the Code. It is fairly well settled that Section 482 of the Code does not confer any new powers on the High Court. It merely safeguards the existing inherent powers possessed by the Court necessary to secure the ends of justice. The power is to be sparingly used. The power is conferred upon the High Court to pass orders that may be necessary to give effect to any order passed under the Code or to prevent abuse of the process of any Court. Necessary orders can always be made by invoking this provision to secure the ends of justice.
8. Before analysing the nature and scope of the jurisdiction of the High Court under Section 482 of the Code in the context of the present question, it is necessary to refer to some relevant provisions of the Code.


9. Section 2(n) defines 'offence'. According to the said definition, 'offence' means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act.
10. It is Section 320 of the Code of Criminal Procedure which deals with compounding of offences. The provisions are exhaustive in their nature and the whole scheme of compounding of the offences is dealt with and regulated by Section 320 of the Code. The relevant provisions contained in Section 320 read as follows :-
 "320. Compounding of offences. - (1) The offences punishable under the Sections of the Indian Penal Code specified in the first two columns of the Table next following may be compounded by the persons mentioned in the third column of that Table (Table - Omitted) (2) The offences punishable under the sections of the Indian Penal Code specified in the first two columns of the Table next following may, with the permission of the Court before which any prosecution for such offence is pending, be compounded by the persons mentioned in the third column of that Table (Table - Omitted) (3) When any offence is compoundable under this section, the abetment i of such offence or an attempt to commit such offence (when such attempt is itself an offence), may be compounded in like manner.
(4)(a) When the person who would otherwise be competent to compound an offence under this section is under the age of eighteen years, or is an idiot or a lunatic, any person competent to contract on his behalf may, with the permission of the Court, compound such offence.


(b) When the person who would otherwise be competent to compound an offence under this Section is dead, the legal representative as defined in the Code of Civil Procedure, 1908, of such person may, with the consent of the Court compound such offence.
(5) When the accused has been committed for trial or when he has been convicted and an appeal is pending, no composition for the offence shall be allowed without the leave of the Court to which he is committed, or as the case may be, before which the appeal is to be heard.
(6) A High Court or Court of Session acting in the exercise of its powers of revision under Section 401 may allow any person to compound any offence which such person is competent to compound under this Section.
(7) No offence shall be compounded if the accused is, by reason of a previous conviction, liable either to enhanced punishment or to a punishment of a different kind for such offence.
(8) The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded.
(9) No offence shall be compounded except as provided by this Section."
It would also be appropriate to refer to Section 482 of the Code which runs as follows :-
"482. Saving of inherent powers of High Court :
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
Section 482, Cr.P.C., corresponds to Section 561-A of the Old Criminal Procedure Code, 1898.
11. In R. P. Kapur v. State of Punjab, , the Supreme Court in categorical terms held (Para 6) :


"There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code."
12. In Palaniappa Gounder v. State of Tamil Nadu, , the issue before the apex Court was whether, in view of the express provision contained in Section 357 of the Code of Criminal Procedure, the High Court had power to pass an order for compensation, in exercise of its inherent powers. The apex Court held as follows (Para 3 of Cri LJ) :
 "Section 482 of the Code under which the heirs of the deceased filed the application for compensation corresponds to S. 561-A of the Criminal Procedure Code, 1898. It saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. A provision which saves the inherent powers of a Court cannot override any express provision contained in the Statute which saves that power. This is put in another form by saying that if there is an express provision in a statute governing a particular subject-matter there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject-matter. From this it will be clear that the application made by the heirs of the deceased for compensation could not have been made under Section 482 since S. 357 expressly confers power on the Court to pass an order for payment of compensation in the circumstances mentioned therein."
13. In Madhu Limaye v. State of Maharashtra, , the apex Court, held (Para 8 of Cri LJ) :
 "The High Court possessed and possesses the inherent powers to be exercised ex debito justitiae to do the real and the substantial justice for the administration of which alone Courts exist."


The apex Court, while laying down the parameters of the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure said (Para 8 of Cri LJ) :
"At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions :-
(1) That the power is not to be restored to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
14. In Simirkhia v. Dolley Mukherjee, AIR 1990 SC 1605, 1990 Cri LJ 1599 while considering whether the High Court is empowered to review its own decision under the purported inherent power, the Supreme Court held : (Paras 2 and 4 of Cri LJ) "The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code.
  xxx                  xxx                 xxx
 "If a matter is covered by an express letter of law, the Court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction."


While saying so, the Supreme Court referred to its earlier decision in Sooraj Devi v. Pyarelal, , wherein the apex Court held (para 5 of Cri LJ) :

"Now it is well settled that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code."


15. Shri Padmanabha Reddy, the learned Senior Counsel brings to my notice the decision rendered by the Constitutional Bench of the Supreme Court in Union Carbide Corporation v. Union of India, , and submits that the matter is now authoritatively decided by the Supreme Court that this Court, in exercise of its inherent jurisdiction cannot direct compounding of offences which are otherwise non-compoundable under the Code. It is necessary to refer to a few facts of that case so as to appreciate as to in what context, the apex Court laid down the law which is relevant for our purpose. An action for compensation was initiated by the Union as parens patriae before the District Court, Bhopal in O.S. No. 1113 of 1986 Under Bhopal Gas Leak Disaster (Proceesing of Claims) Act, 1985. When an interlocutory matter pertaining to the interim-compensation came up for hearing before the Supreme Court there was a Court assisted settlement of the main suit claim itself. The criminal liability of the Union Carbide Corporation was also finally terminated and put to an end by that Court assisted settlement of the main suit. It was specifically urged before the Supreme Court that the termination of the pending criminal proceedings brought about by the orders dated 14th and 15th February, 1989 is bad in law and were liable to be set aside on the ground that if the orders are construed as permitting a compounding of offences, they run in the teeth of the statutory prohibition contained in Section 320(9) of the Code of Criminal Procedure. While dealing with this issue, the Supreme Court held : (At page 278 of AIR) "The order terminating the pending criminal proceedings is not supportable on the strict terms of Ss. 320 of 321 or 482, Cr.P.C."


Having said that, the Supreme Court justified its earlier court assisted settlement with reference to its powers under Art. 142 of the Constitution of India, for doing complete justice between the parties. In categorical terms, the apex court held : (At pp. 278, Para 43 of AIR) "The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the apex court under Art. 142(1) is unsound and erroneous. In both Garg's as well as Antulay's case the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Art. 142 in so far as quashing of criminal proceedings is concerned is not exhausted by Ss. 320 or 321 or 482, Cr.P.C. or all of them put together. The power under Art. 142 is at an entirely different level and of a different quality. Prohibitions or limitations in the Statute might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the Court on which conferment of powers ..... limited in some appropriate ..... way is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy."
A close reading of the said decision of the Supreme Court would show that even the Supreme Court, in the absence of its plenary jurisdiction under Article 142 of the Constitution of India, would not have compounded the offence which is otherwise non-compoundable.


16. The learned Senior Counsel also relied upon a decision of Madras High Court in Sankar Rangayya v. Sankar Ramayya, AIR 1916 Mad 483 : (1915) 16 Cri LJ 750) in support of the proposition that an order allowing composition of the offence is not an incidental order and that an offence cannot be allowed to be compounded when the case comes before the High Court in revision. In the said case, it is categorically held that no offences shall be compounded except where the provisions of Section 345 (present Section 320) are satisfied as to each of the contingencies provided for in the section itself.
17. Shri Padmanabha Reddy, learned senior counsel refers to a decision of the Supreme Court in Dharampal v. Ramshri, . The Supreme Court in the said case was concerned with a question as to whether the High Court could have invoked its jurisdiction under Section 482 of the Code in entertaining a second revision application which is expressly barred by Section 397(3) of the Code. In the said context, the Supreme Court held (Para 4) :
 "It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code."
18. In Ganesh Narayan Hegde v. S. Bangarappa, (1995) 2 All Cri LR 211 while dealing with the power of the High Court under Section 482 of the Code. No doubt the Supreme Court held :
 "While it is true that availing of the remedy of the revision to the Sessions Judge under Section 399 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as second Revisional Court under the garb of exercising inherent powers."


19. On an conspectus and analysis of all these decisions, it is absolutely clear that the inherent jurisdiction of the High Court under Section 482, Cr.P.C., is available to be exercised for advancement of justice and if any attempt is made to abuse the process of any Court, the High Court shall interfere and exercise its jurisdiction to prevent the same. It is also manifestly clear that this court in exercise of its jurisdiction under Section 482, Cr.P.C. shall not pass any order or issue any direction contrary to the provisions of the Code. The inherent jurisdiction conferred upon this Court merely enables the Court to deal with the situation which is not contemplated by the Code to give effect to any order passed under the Code. This inherent power of the High Court can never be exercised compelling the subordinate criminal courts to act in any manner contravening the provisions of the Code. Such an order can never be termed as an order passed to prevent the abuse of the process of any court. It cannot also be said that such order would secure the ends of justice. Every legal power has its own limitations. There is nothing like unlimited power. So also the power conferred upon this Court under Section 482 of the Code of Criminal Procedure.
20. The legislative mandate enshrined in Section 320(9) of the Code is manifestly clear. It is couched in a mandatory form. This court, in exercise of the jurisdiction under Section 482 of the Code cannot add, vary or amend a statutory provision. Section 320 of the Code which deals with compounding of offences is exhaustive in its nature and only those offences can be compounded in accordance with the provisions of Section 320 of the Code and not in any other manner.


21. It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of a provision is plain and unambiguous. The Court cannot re-writ, recast or reframe the legislation for the very good reason that it has no power to legislate. (see Union of India v. Deoki Nandan Aggarwal 1991 AIR SCW 2754.)


22. Dealing with the similar situation, the apex Court in State of Kerala v. Mathai Verghese, said (Para 1 of Cri LJ) :
 "When the legislature does not speak the Court interpreting the relevant provision of law cannot substitute the ..... The High Court cannot do so for, the court can merely interpret the section; it cannot re-write, recast, or redesign the section. In interpreting the provision the exercise undertaken by the Court is to make explicit the intention which enacted the legislation. It is not for the court to reframe the legislation for the very good reason that the powers to 'legislate' have not been conferred on the court."
23. Can the High Court in exercise of its jurisdiction under Section 482, Cr.P.C., convert a non-bailable offence into a bailable offence or vice versa ? Can the High Court in exercise of its powers under Section 482, Cr.P.C., make a non-cognizable offence as a cognizable offence or otherwise ? The answer should be an emphatic No. Likewise, the High Court, in exercise of its inherent jurisdiction under Section 482 of the Code cannot command the sub-ordinate criminal courts to permit the parties to compound an offence which is not otherwise compoundable. An argument was sought to be raised that such an order can be passed to meet the ends of justice. The court renders justice in accordance with law and not in accordance its own notion. Administration of justice in accordance with the provisions of the Code of Criminal Procedure by the Sub-ordinate criminal courts can never be said that Courts are acting contrary to justice. Can it be said that the refusal to compound the offence by the subordinate criminal court is an abuse of the process of the Court ? It is not. Therefore, the question of this Court exercising jurisdiction under Section 482, Cr.P.C. in such a situation as if to prevent the abuse of the process of the Court does not arise.


24. Parliament, in its wisdom, thought that only certain offences specified under Section 320 of the Code alone can be compounded and no other offences. Variety of factors must have been taken into consideration by the Parliament in limiting the offences which can be compounded. It is not possible for this Court to ascertain as to what were the legislative inputs in enacting Section 320 in to the Code of Criminal Procedure. Parliament knows better as to what facts constitute an offence and as to whether such an offence should be compounded. It is a matter of social policy concerning social order. May be, Parliament thought that such of those offences which are not compoundable under the Code are offences where larger interests of the society is involved. Any orders passed by this Court directing the subordinate criminal courts to compound the offences which are not otherwise compoundable would amount to compelling the subordinate criminal courts to act in contravention of law. Such directions would be destructive of the Rule of Law.
25. This Court, by issuing such directions, could not confer jurisdiction on the criminal courts to compound a non-compoundable offence which it did not possess such jurisdiction under the scheme of the Code. It is well settled that the power to create or enlarge the jurisdiction is in the exclusive domain of the legislature and such power being legislative in character, the legislature alone can do it by law. This Court can neither divest nor enlarge the jurisdiction of any court.


26. However, certain decisions were brought to my notice whereunder the High Courts, in exercise of jurisdiction under Section 482, Cr.P.C. directed compounding of offences particularly in the offences relating to matrimonial matters. The learned counsel refers to Arivind Bhushan Chugh v. Dr. Promila alias Ritu, (1992) 3 Cur Cri R 2272 (Delhi), Manoj Kumar Behl v. State, (1992) 3 Cur Cri R 2939 (Delhi), State of Rajasthan v. Gopal Lal (1992) 3 Cur Cri R 2953 (Raj).
27. In State of Rajasthan v. Gopal Lal (1992 (3) Cur Cri R 2953) (supra), the Rajasthan High Court expressed its opinion that it is high time the legislature should consider whether offence punishable under Section 498-A, I.P.C. should be included in the list of offences under Section 320, Cr.P.C. I am in entire agreement with the view and endorse the opinion expressed by the learned Judge of the Rajasthan High Court. But I am not in agreement with the said decision of the Rajasthan High Court upholding compounding of offence ordered by the Additional Chief Judicial Magistrate, Jaipur. So also, the judgment of the Punjab and Haryana High Court in Parkash Singh v. Smt. Santosh Kaur, (1994) 1 All Cri LR 319 wherein the offences punishable under Sections 406, 498A and 34 of the Indian Penal Code were quashed by the High Court in exercise of its jurisdiction under Section 482, Cr.P.C. as the matter was compromised between the parties.


28. The learned counsel Sri C. Padmanabha Reddy also referred to decisions of this Court in G. Srinivasulu v. S.H.O., Kandukur (1992) 1 APLJ 452 and M. Padma Balaji v. A. Krishnam Raju (1995) 2 Andh LT 10 (NRC). In none of these decisions, there is any discussion whatsoever about the nature, scope and power and jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure.
29. The learned Senior Counsel also brought to my notice a decision of the Supreme Court in Mahesh Chand v. State of Rajasthan, . It is obvious that the apex court has not declared any law as such, but in the facts and circumstances of that particular case on hand, it appears, the Supreme Court itself had compounded the offence and directed the trial court to record the compounding of the offence. The power for issuing such direction is traceable to Art. 142 of the Constitution of India in view of the peculiar facts and circumstances of that case.
30. However, Sri Padmanabha Reddy, the learned senior Counsel referred to a decision of the Division Bench of this Court in D. Vijayalakshmi v. State (1993) 2 Andh LT (Cri) 159. In the said case, the Division Bench of this Court took the view that in exceptional circumstances only and not as a matter of course, the High Court can direct the subordinate criminal courts to permit the parties to compound the offence punishable under S. 498-A, I.P.C., only. After an elaborate consideration, the Division Bench held :


"the permission sought for to compound the offence under Section 498-A, I.P.C. pursuant to the settlement or compromise and understanding between the spouses can be accorded by the High Court under Section 482, Cr.P.C. is not justified to be used as a matter of course in each and every case. We are of the firm view that in matrimonial cases, that too, in exceptional circumstances where the disputes arose between the wife and the husband resulting in filing a complaint and a petition for divorce which ultimately resulted in the form of compromise either for divorce or for re-union, and where some of the Sections complained of are compundable and some non-compoundable, the High Court alone is competent, exercising the inherent power vested in it under Section 482, Cr.P.C. to permit the parties to compound a non-compoundable offence along with other compoundable offences, after being satisfied with the compromise entered into between the parties."
However, the Division Bench held :
 "We are still of the firm view that in the case of non-compoundable offences in general the High Court has no power to permit the parties to compound the same. Sympathy towards the accused shown in special set of circumstances is different from applying the provisions of the Act. Sympathy cannot be a ground for applying the inherent powers vested in the High Court under Section 482, Cr.P.C. It is should be exercised in exceptional cases only to prevent the abuse of the process of the Court or to meet the ends of justice. Sympathy has no place to outweigh the powers given under a particular statute."
The learned Judges further observed :


The learned Judges further observed :
 "The Legislature has introduced this special Chapter bringing a new Section 498A considering the plight of women in the society at the hands of their husbands and in-laws. However, when under the Hindu Marriage Act, reconciliation proceedings are there in spite of serious allegations, we feel that in case of genuine compromise effected between the parties (husband and wife) and if an application has been filed voluntarily by the two parties and if the Court satisfies that any special circumstances exist warranting granting of permission to compound a non-compoundable offence and if it is in the interests of both the parties, the High Court under special circumstances, exercising the inherent power under Section 482, Cr.P.C. may allow the parties to compound such offences. We are not here to lay down a general proposition that the Court is competent to permit the parties in all the cases to compound a non-compoundable offence. The law with regard to exercising of the inherent power is very clear. To prevent abuse of any Court or otherwise secure the ends of justice, the High Court has got inherent powers under Section 482, Cr.P.C., to pass such order as is necessary in the facts and circumstances of the case."


I have carefully gone through the judgment. The learned Judges of the Division Bench undoubtedly held that this Court, in exercise of its powers under Sections 482, Cr.P.C. in a given case, can direct an offence punishable under Section 498-A, I.P.C., to be compounded. The Division Bench has not expressed any opinion with regard to other non-compoundable offences. The Division Bench never expressed any opinion as to whether any non-compoundable offence, except the offence under Section 498-A, I.P.C. can be ordered to be compounded by this Court in exercise of the powers under Section 482, Cr.P.C. The Division Bench seems to be of the opinion that even this power should be sparingly used in a given case after satisfying itself to its genuineness, the background of the settlement between the husband and wife. Therefore, the Division Bench decision is not an authorative pronouncement for the propostion that this Court has the power or jurisdiction to direct compounding of the offences which are otherwise non-compoundable.
31. It is fairly well-settled that a single Judge is definitely bound by the judgment of the Division Bench with regard to the same subject-matter. The doctrine of precedent requires such compliance.
32. The question before me is a larger one than that was canvassed before and dealt with by the Division Bench. The question of jurisdiction was not pointedly projected before the said Division Bench and obviously, therefore, was not dealt with.


33. The Division Bench was concerned with one particular aspect as to whether the offence under Section 498A of the Indian Penal Code can be directed to be compounded, whereas the cases before me involve other offences also including the one under Section 307, I.P.C. Section 138 of the Negotiable Instruments Act. In Criminal Petitions Nos. 2951 and 2952 of 1995, the offence, alleged to have been committed by the petitioners accused included the offence under Section 452, I.P.C. also which is non-compoundable, for which now permission is sought for compounding the same. Even with regard to the jurisdiction of this Court for directing the offence punishable under Section 498-A, I.P.C. to be compounded, I express my inability to agree with the view taken by the learned Judges of the Division Bench. Then the question would be as to whether am I bound by the said judgment ?
34. In the entire judgment of the Division Bench, nowhere there is a reference to sub-section (9) of Section 320 of the Code which is mandatory in its nature containing the legislative command to the effect that no other offence except the offences stated in Section 320 itself can be compounded. Had the Division Bench noticed sub-section (9) of Section 320 of the Code in my humble opinion, the result would have been different. Therefore, the judgment rendered by the Division Bench is without reference to the relevant mandatory provision of law and also prestigious binding authorities. Therefore, the judgment must be regarded as given in per incuriam with regard to exercise of jurisdiction under Section 482, Cr.P.C. in relation to compounding of non-compoundable offences.


35. That apart, the binding precedent in Union Carbide Corporation's case (supra) is not brought to the notice of the Division Bench. Another binding precedent of the Supreme Court in Dharampal's case (1993 Cri LJ 1049) (supra) was also not brought to the notice of the Division Bench.
36. The question directly came up for consideration before the Supreme Court in Ram Pujan v. State of Uttar Pradesh, . In the said case, the offence punishable under Section 326 of the Indian Penal Code was compromised between the parties at the appeal stage and the High Court referred the matter to the trial court for verification of the compromise. After the compromise was got verified, the High Court passed an order stating that the offence under Section 326, I.P.C. was non-compoundable and permission to compound the said offence could not be granted, but reduced the sentence in view of the compromise from four years to two years. The Supreme Court, speaking through Khanna, J. held (Para 7) :
 "The Major offence for which the appellants have been convicted is no doubt non-compoundable, but the fact of compromise can be taken into account in determining the quantum of sentence."
Clearly, the order of the High Court in refusing permission to compound the offence is upheld by the Supreme Court.
37. Similarly, in Rajinder Singh v. State (Delhi Admn.) , the Supreme Court was dealing with an appeal regarding conviction of the petitioner therein under Sections 325 and 452, I.P.C. The matter was compromised between the parties. The Supreme Court stated thus :-


"The former offence can be compounded with the permission of the court. We grant permission to the parties to compound the said offence. The effect of that is the acquittal of the petitioner in view of the provision of law contained in Section 320(8) of Cr.P.C. for the offence under Section 325.
The other offence under Section 452 is not compoundable. Under the circumstances, while maintaining conviction of the petitioner under the said provision of law we reduced the sentence to the period already undergone."
38. In Biswabahan v. Gopen Chandra, the Supreme Court in categorical terms said : It is therefore clear that to have the effect of an acquittal the offence compounded must be one specified either under sub-section (1) or sub-section (2) of Section 345 of the old Code (Section 320 new). The principle behind the scheme seems to that wrongs of certain classes which affect mainly a person in his individual capacity or character may be sufficient redressed by composition with or without the leave of the court as the case may be. The Supreme Court categorically held :
 "If a person is charged with an offence, then unless there is some provision for composition of it the law must take its course and the charge enquired into resulting either in conviction or acquittal. If composition of an offence was permissible under the law, the effect of such composition would depend on what the law provided for."
None of these binding precedents are noticed by the Division Bench. The law declared by the Supreme Court is binding upon this Court and is the constitutional command enshrined under Art. 141 of the Constitution of India.


39. Compounding of offences which are otherwise non-compundable under Section 320 of the Code are expressly barred by sub-section (9) of Section 320 of the Code. Therefore, the judgment of the Division Bench even with regard to its applicability to the offence under Section 498A, I.P.C. is given per incuriam.
40. The doctrine of per incuriam is explained by the apex court in Mamleshwar v. Kanayaiya Lal, :-
 "We do not intend to detract from the rule that, in exceptional instances, whereby obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obstrusive omission."
The doctrine is undestood by the Court of Appeal in Young v. Bristol Aeroplane Company Ltd. (1944) 1 KB 718 as follows :


"Where the court has construed a statute or a rule having the force of a stuatute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provisions and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given in per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts. Two classes of decisions per incuriam fall outside the scope of our inquiry, namely, those where the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covers the case before it - in such a case a subsequent court must decide which of the two decisions it ought to follow; and those where it had acted in ignorance of the House of Lords which covers the point in such a case, a subsequent Court is bound by the decision of the House of Lords."


"A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it or when it has acted in ignorance of a decision of the House of Lords. A decision may also be given per incuriam when it is given in ignorance of the terms of a statute or of a rule having the force of a statute. As a general rule, the only cases in which decisions should be held to be given per incuriam are those given in ignorance of some inconsistent statute or binding authority." (See Hallsbury's Law of England, 3rd Edition, Vol. 22 at page 800).
41. A seven Judges Constitutional Bench of the Supreme Court authoritatively declared the Law as to what constitutes 'per incuriam' in A. R. Antulay v. R. S. Nayak, as follows :-
 "'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
"The principle that the size of the Bench whether it is comprised of two or three or more Judges - does not matter."
It is settled rule that if a decision is given in per incuriam, the Court can ignore it.
42. My learned brother Justice M. N. Rao had an occasion to consider the doctine of 'per incuriam' in a judgment rendered in Smt. Kannamma v. Dist. Collector Ranga Reddy (1990) 1 Andh WR 722 and put the law very succinctly as follows :


"Unfortunately, without noticing the above binding precedent, it was held by this Court - These cases, I must declare with due respect to the learned Judges are per incuriam - Even if any Division Bench of this Court or for that matter a Full Bench of this Court had taken the view - it must be deemed to be no longer good law after the authoritative pronouncement of the Supreme Court in Laxman Ambaji's case - I do not consider it appropriate to refer the matter to a Division Bench for the obvious reason that on the question under consideration the decision of the Supreme Court in Laxman Ambaji's case holds the field and without noticing the same, this court had taken a contrary view."
For the aforesaid reasons, the decision of the Division Bench which is rendered in per incuriam is not a binding precedent. There is no need to refer the matter to Division Bench or Full Bench. I need to say no more on this aspect.
43. The power conferred upon this Court under Section 482, Cr.P.C., is general in nature. The provision protects the inherent jurisdiction of this Court to meet any eventuality not contemplated by the Code of Criminal Procedure to give effect to the orders passed by the Courts and to prevent the abuse of the process of the Court and to pass appropriate orders to meet the ends of justice. Whereas Section 320 of the Code is a special provision dealing with compounding of offences. It exhaustively deals with as to what are the offences that there compoundable and the manner in which they are to be compounded and further it specifically commands that no other offence other than those mentioned in Section 320 of the Code shall be allowed to be compounded. The effect of compounding of an offence is the acquittal of the accused in the case.


44. It is well established doctrine of interpretation that the provisions contained in a statutory enactment have to be construed as to be in harmony with each other and that where, under a specific section or rule a particular subject has received special treatment, such special provision will exclude the applicability of any general provision which might otherwise cover the said topic. (See Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar Sheth ).
45. Application of any general principle must yield to the limiting terms of the statutory principle itself (see Union of India v. Raghubir Singh ).


46. A similar situation arose under Criminal Justice (Temporary provisions) Act (Northern Ireland), 1970 in Kennedy v. Spraft, (1971) 2 WLR 667 (HL). By Section 1 of the Criminal Justice (Temporary Provision) Act (Northern Ireland), 1970, it was provided that 'any person' who is convicted of an offence, committed during the period of present emergency, under any of the statutory provisions mentioned in column 1 of the Schedule, shall, notwithstanding anything to the contrary contained in that or any other statutory provision, be sentenced to imprisonment for not less than the period specified opposite that provision in column No. 2 of the Schedule II'. The question that arose was whether a court sentencing an accused under the aforesaid provision had power to suspend the sentence and release the accused on probation under Section 18 of the Treatment of Offenders Act, 1968. Having regard to the mischief at which the Act was aimed, i.e., to ensure greater uniformity of sentences and to deter further out-breaks of violence, it was held that the court had no power to award suspended sentence and the words in the section 'shall be sentenced to imprisonment' for a specified period, meant that the accused be punished by sending him to prison." (See G. P. Singh's Interpretation of Statutes).
47. In view of the aforesaid, discussion, I hold that this court has no power and jurisdiction to direct the subordinate criminal courts to permit the parties to compound the offences which are otherwise non-compoundable in exercise of the inherent jurisdiction under Section 482 of the Code of Criminal Procedure.
48. In the view I have taken supra, the petitions cannot be entertained by this Court and all the petitions are accordingly dismissed.


49. Before parting with the case, this Court with gratitude acknowledges the invaluable assistance rendered by Sri C. Padmanabha Reddy, the learned Senior counsel for his assistance was in the spirit of a real and true friend of the Court.
50. Petition dismissed.


Jaldu Anantha Raghurama Arya vs Jaldu Bapanna Rao And Ors. on 8 August, 1958

JUDGMENT P. Chandra Reddy, C.J.

 1. This second appeal arises out of a suit instituted by the 1st respondent in the Court of the District Munsif of Masulipatam for dissolution of partnership, for accounts and other incidental reliefs. This appeal concerns a timber business of one Jaldu Venkata Subbarao of Masulipatam who executed a will on 20-6-1942. He died on 22-6-1942 leaving behind him his widow and considerable assets including the timber business in dispute.
 By and under the terms of the will he made certain bequests in favour of his near relations and faithful servants. The decision of this appeal turns mainly on the relevant clauses of the testament. It is useful to set out the relevant clauses of the will-
 "I have appointed three individuals mentioned herein as executors arid trustees of my estate after my death -- Thatiparti Nagapotharao, Jaldu Manikyalarao, Pulaparti Viswanadhani. It is provided that at my death all my estate shall vest in the three individuals mentioned herein who shall act according to the provisions mentioned in the wilt .......


It is provided that from Chaitra Sudha Panchame of year Swablianu separate accounts shall be maintained and in the timber shop at Masulipatam 1/4th share wilt be allotted to Dintakurti Satyanarayanamurthy and he should improve business and continue it protecting my adopted son till lie becomes a major. Another 1/4th share will be set apart and if the executors are willing they would give it to the following persons -- Kantheti Narasimharao, Jaldu Bapannarao, Kantheti Satyanarayanamurthy."
 Immediately after his death the property of the testator became the subject-matter of litigation. The genuineness of the will was attacked by his widow as well as the 4th defendant in two separate suits, but it is not necessary to give the details. Ultimately, the validity of the will seems to have been upheld, but it is not necessary to advert to it at any length here. The plaintiff who is no other than the nephew of the testator being a son of one of the brothers instituted the present suit for the reliefs mentioned above as he was not given his due share of the income in the said business.
 The three executors were impleaded as defendants 1 to 3. The adopted son was added as the 8th defendant who is the appellant before us. It is not necessary for us to refer to the array of the other parties.


2. By opening fresh accounts, and by acting otherwise, the executor implemented sonic of the terms of the will. On account of disputes amongst the executors inter se, the business seems to have been suspended some time later, but one of the legatees, namely, Dintakurti Satyanarayana who was impleaded as 6th defendant in the suit resumed the business some time in the year 1946. In such a situation, the plaintiff brought the present suit praying for dissolution of partnership business and for accounts.
 3. The answer of defendants 1 and 2 i.e., two of the executors was that the gift to the plaintiff and the defendants 4 and 5 did not consist of any share of the corpus but only a share in the profits, that as the plaintiff and defendants 4 and 5 were not settled in life the testator had desired that ell information regarding the legacy in their favour should be withheld from them and that after the testator's death the executors agreed to give the plaintiff and defendants 4 and 5 a 1/4th share in the profits and fresh accounts were accordingly opened. But the executors deferred their payment of the share of profits for some reasons which need not be detailed here.


4. The 3rd defendant adopted a different attitude and said that the executors did not exercise the discretion vested in them under the will to give a 1/4th share to plaintiff and defendants 4 and 5. While the 4th defendant supported the plaintiff, the 5th defendant denied the genuineness of the will and repudiated any interest in the business of the testator. The other defendants fell in line with the 3rd defendant. The contesting defendants also raised a plea that the judgment in the suit filed by the 4th defendant earlier operated as res judicata against him. Various other issues were raised by the pleadings, but they will be dealt with in the proper context.
 5. After the conclusion of the trial but before the judgment was delivered, the 5th defendant put in a petition for amendment of his written statement and issues by permitting him to ask for relief based on the terms of the will. This application was not allowed on the ground that it was very belated. The trial court passed a preliminary decree as follows:
 1. The partnership shall stand dissolved as on 11-4-1946;
 2. The plaintiff and the 4th defendant shall each be entitled to 1/12th share in the net profits of the timber business of the testator in Bandar;
 3. The account books of the partnership shall be taken as the basis for ascertaining the profits.
 4. The value of the stock-in-trade of the business on 11-4-1946 be ascertained and a 1/12th share therein shall be paid to each of the plaintiff and the 4th defendant.
 The trial court declined to pass a decree in favour of the 5th defendant as in its view he disowned all interest in the business.


6. The 5th and 8th defendants who were aggrieved by this decree preferred appeals A.S. 26/1953 and 45/1952 respectively. The plaintiff who was also aggrieved with certain directions in the decree preferred the memo, of cross-objections. The lower court allowed the appeal of the 5th defendant but dismissed the appeal of the 8th defendant with costs and allowed the memo, of cross-objections. It is this judgment of the Subordinate Court that is brought under appeal. Its validity is impugned on various grounds.
 7. At the outset, it is contended by the counsel for the appellants that the bequest in favour of plaintiff and defendants 4 and 5 being only a conditional one and the conditions imposed thereunder riot having been fulfilled the whole thing falls into the residue and so far as that share was concerned, there was intestacy. Alternatively, it is maintained that the testator had conferred only a power of appointment on the executors and this power not having been exercised no right has accrued to the plaintiff or defendants 4 and 5.
 Though this problem was not raised in this precise form in the Courts below, we permitted the appellant to argue it as it is a pure question of law. We are not very much impressed with the first argument. There is no basis for the submission that the bequest in favour of plaintiff and defendants 4 and 5 was conditional one. The present bequest cannot be regarded as conditional devise as the requirements of such a bequest are not present in this case. In fact, the learned counsel for the appellant did not persist in describing it as conditional bequest; and, he fell back upon the alternative contention.


The argument advanced is that the language of the relevant clause, namely, ^^vanqyks [email protected] efj;ksd Hkkx Hkq ;sikZVq psfl ,D>sD;qVyqZ b"Veq v";s ;sMy ykHkHkq f;P;qP;qaMs ykxqu ;sikZVq ps;MeSaufn** communicates the idea that the assigning of a share to these persons entirely depended on the will and pleasure of the executors and the non-exercise of their discretion has left these individuals without any remedy. In support of his contention the learned counsel for the appellant cited to us several rulings of English and Indian Courts.
 8. The point for determination is whether the construction that is sought to be put on the material recitals, namely, that it is a mere power that is conferred upon the executors is correct or whether it is power coupled with interest.
 9. Before we examine the various authorities, called in aid by the counsel on either side, we may mention that the right of a testator to grant a power of appointment to a person designated in the will authorising to regulate the final devolution of the estate at the termination of the interest previously created has been recognised by the Courts of this land and the Privy Council as far back as Bai Motivahoo v. Bai Mamoobai, 24 Ind App 93 (PC), thereby sanctioning a great extension of the testamentary powers. Legislative sanction was given to this by enacting explanation to Section 69 of the Indian Succession Act;
 "Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property."


10. Coming now to the rulings, we will first refer to Bull v. Vardy, (1791) 30 ER 338. There, the testator bequeathed to his wife several houses but did not give her any interest in the general produce of his state. The will inter alia recited:
 "I further empower my wife to give away at her death 1,000/-; 100 of it to Elizabeth and 100 to Mrs. Bennet and the other 800 to be disposed of by her by will."
 The testator gave his two sisters his money in securities for their lives and said that his legatees were to take nothing till after the death of his wife and two sisters. He then distributed his property into small legacies and gave the residue to two young women named Crowe. The wife without making any disposition of the whole or a part of 1,000 aforementioned died.
 Elizabeth Turner laid a bill against the executors of the widow of the testator claiming 100 which she had power to leave to the claimant. It was argued on behalf of the plaintiff that the 100 which the wife of the testator was empowered to give was sufficiently devised by the will and that words connoting recommendation, desire, request, etc., were in their nature compulsory and words of devise and when the testator empowered his wife to give to a certain object a certain sum there was a legacy.
 This was negatived by L.C.B. Eyre in the view that the wife had no interest at all in the 100 and as such there was nothing to raise a trust and consequently the devise to her was only a naked authority. The ratio decidendi is contained in the following passage:


"The plain import of the words with the context seems to be this: He gives the residue to these women named. Crowe; but says his wife may dispose of 1,000/- if she pleases; if she does, she must give 100 to each of these women; the rest as she pleases. The word 'empower' in its most obvious sense is enough to create a charge. The party must execute the power to create a charge."
 It is true this case has stood the test of time and still holds the field, but does not render any assistance to the appellant as it applies to a set of different circumstances from those of the present. There, the wife was not given any interest in 1,000. She was given only a power to dispose of 1,000 forming part of the residue of the estate given to two women named Crowe. If the wife did not exercise that power during her lifetime it would belong to the residue of the legatee and so there was nothing to raise a trust. Further, out of 1,000/- a provision was made only for 200. Thus, it is a clear case where no trust was created in favour of either Elizabeth Turner or Mr. Bennett.
 11. The case next cited for the appellant Is In re, Week's Settlement, 1897-1 Ch 289. In that case, the will of the testatrix that fell to be considered by the Courts conferred on her husband a life-interest in certain property. Then followed the clause:
 "And I give to him power to dispose of all such property by will amongst our children in accordance with the power granted to him as regards the other property which I have under my marriage-settlement".


There were children but the husband died intestate without having exercised the power of disposition. It was decided by Romer L. J. (Romer J., as ha then was) that what was conferred on the husband was a mere power and not one coupled with interest, which was bound to be exercised. Therefore, there was no gift to the children by implication. Romer J., began by saying that "I should gather from the terms of the will that it was mere power conferred on the husband,"
 The learned Judge also remarked that the authorities cited to him did not show that "any hard and fast rule that a gift to A for life with power to A to appoint among a class and nothing more must, if there is no gift over in the will, be held to be a gift by implication to the class in default of the power being exercised." He added that the indication should be found in the will that the testator or testatrix did intend that the class or some of the class to take--intended in fact that the power should be regarded in the nature of a trust -- only, a power of selection being given, as for example, a gift to A for life with a gift-over to such of a class as A shall appoint.
 Thus, this is not an authority for the proposition that whenever a power of appointment is conferred that should he construed as a mere power and that no trust can be implied in favour of objects of that power.


12. In re. Combe; Combo v. Combe, 1925-1 Ch 210, which followed 1897-1 Ch 289 is of the same character. In that ease by his will one Harvey T. Brazazon Combe after appointing his wife and son to be executors and trustees, devised and bequeathed his residuary, real and personal estate, to trustees upon trust for conversion and to hold the net proceeds and the investments representing the same in trust to pay the income to his wife during widowhood and after her death or remarriage in trust for his only son for life and from and after his death "in trust for such person or persons as my said son ...... shall by will appoint."
 The will proceeded "but I direct that such appointment must be confined to any relation or relation of mine of the whole blood." It was held by Tomlin J., that the will did not show any intention on the part of the testator to make a trust in favour of the objects of power and consequently "if the son released his power of appointment, the property would go subject to the two life interests as on an intestacy." The main consideration that weighed with the learned Judge in coming to that conclusion was that there was uncertainty as to class of persons for whose benefit he could create a trust which the son was under a duty to execute. The following passage gives the reason for the learned Judge's opinion:


"I have no difficulty in coming to the conclusion that there is in this will no indication adequate to enable me to conclude that a trust was intended to be created. The class said to be the beneficiaries hem differs wholly from the class which is the subject of the discussion in the cases that were cited. That was generally the testator's children, or, at any rate a quite definite and ascertained class, What this class is going to be, if it became necessary to ascertain it, I confess at the moment I am unable to say.
 At any rate it does not seem to me to be such a class as justifies me in saying that the testator meant it to benefit in any event. I think it may very well be that the form of this will is deliberate and that he really meant his son to have a life interest and to be able to dispose of the property afterwards, provided that it was not left wholly out of the family, and that for the rest he was content to let it go as the law would make it go upon an intestacy. I see no reason on the words of this will for importing into it something which I am quite sure is not there."
 That case is therefore based upon the words of the will and upon the uncertainty and indefiniteness of the objects of power. Here also the learned Judge said that there was no inflexible rule in regard to such matters which means that the decision has to be reached on the dispositive words in the will.


13. Re, Eddowes, (1861) 62 ER 430, cited by the counsel for the appellant in his reply also belongs to the same category. What happened in that case was that a testator after having made a bequest of the residuary estate to his seven children revoked by a codicil the share given in the will to one of the sons and gave the same to his trustees by a trust at their uncontrolled discretion to apply the same or such parts thereof as they should think proper for the personal maintenance and support or otherwise for the benefit of the said son or otherwise to apply the same in augmentation of the shares of the testator's other children.
 The trustees did not exercise the power but paid the share in question into court under the Trustee Relief Act. It was laid down by Vice Chancellor Sir R.T. Kindersley that there being no gift in favour of the person who would he benefited by the exercise of the power, no gift could be implied. Consequently, there was intestacy with respect to that share. This is an obvious case of a mere power and not one coupled with interest.
 On the terms of the will, no gift could be implied. This does not therefore advance the case of the appellant in any way.
 14. It was then argued by Sri Somasundaram with great insistence that the principle enunciated in Kumarasami v. Subbaraya, ILR 9 Mad 325, would govern the instant case on hand. There, a Hindu by his will after appointing certain persons as executors for the purpose of managing the estate gave them the following direction:
 "You should give my brothers, their wives and children, according to your wishes."


"You should give my brothers, their wives and children, according to your wishes."
 Justice Brandt and Justice Parker in reversing the judgment of Justice Kerman in regard to the effect of these words observed that the words expressed a wish only and not a command and that though the objects of the testator's benevolence were clearly mentioned there was uncertainty both as to the property and the way in which it should go. It was also remarked by both the learned Judges that the executors who were given the power of general direction did not exercise but renounced the only character in which it was competent to exercise it.
 Since they have not chosen to act, the Court would not act unless the power is coupled with a trust. It is manifest that it is the uncertainty as to the property to be distributed amongst the persons intended to be benefited by the testator and the mode of distribution that induced the learned Judge to give that decision.
 15. The other case called in aid by Sri Somasundaram does not come to the rescue of the appellant. In Mussoori Bank v. Albert Charles Raynor ILR 4 All 500 (PC), the testator made a gift in these words:
 "I give to my dearly beloved wife the whole of my property both real and personal (described) feeling confident that she will act justly to our children in dividing the same when no longer required by her."


The Privy Council in setting aside the judgment of the High Court of Allahabad held that under the will an absolute estate was given to the wife and no trust was created for the benefit of the children. It is seen that in that case no obligation was cast on the wife to leave any property to the children. It was a mere pious wish of the testator which was left to his wife to give effect or not. This does not lend any support to the theory propounded by the counsel for the appellant.
 16. Bhaidas Shivdas v. Bai Ghulab, ILR 46 Bom 153: (AIR 1922 PC 193), also does not carry the appellant anywhere. That was a case where a Hindu under his will constituted his wife the owner of the property (malik) and provided that she should leave whatever property might remain after her death to two named daughters as she liked. On a construction of this clause, the Privy Council agreed with the view of the High Court that the widow took an absolute estate and there was no trust created in favour of the two daughters of the testator and the testator merely expressed a wish.
 17. We will now examine the other line of cases. One of the earliest cases where the principle is stated in clear terms and it was relied on in almost all the rulings of the English Courts on the subject is Brown v. Higgs, (1799) 31 ER 366. In that case one Henry Brown bequeathed inter alia the leasehold interest of an estate for life to his nephew John Brown and the heirs-male of the body lawfully begotten and in default of such heirs to one of the sons of his nephew Samuel Brown as John Brown might direct by conveyance in his life or by his last will and testament.


He bequeathed to John Brown another leasehold interest upon trust subject to certain charges, to employ the remainder of the rent to such children of Samuel Brown as John Brown shall think most deserving and could make the best use of it or to the children of his nephew William Augustus Brown, if any. John Brown died without issue soon after the execution of the will his first mentioned nephew having predeceased him leaving a son and two daughters. The second nephew also died in the testator's life leaving some children. His widow who was given some legacies remarried Charles Higgs.
 A suit was filed by the children of Samuel Brown against the testator's widow and the next of kin for establishing the will and for other reliefs. One of the questions that fell to be determined was whether the surplus rents after the charges created by the will were so given to such children of Samuel Brown as John Brown would think most deserving and that he would put it to the best use of it or to the children of William Augustus Brown was a gift to all the children or only to such of them as John Brown would select. If the intention of the testator as could be gathered from the will was the former, the death of the testator i.e., John Brown would make no difference.
 But, if that was not the intention, the bequest would fail with the death of John Brown by reason of the selection not having been made. Sir Richard Arden M.R. construed the relevant clause of the will as giving to the children of Samuel Brown or William Augustus Brown with a power to John Brown to select any he thought fit and to exclude others, and that it could not be said that nothing was intended for them, exclusive of the appointment of John Brown. The learned Judge added:


"The fair construction is that at all events the testator meant it to give to the children and these words of appointment he used only to give a power to John Brown to select some and exclude the others."
 The decree which was originally pronounced on Rolls was affirmed on rehearing. This was confirmed by the Court of Appeal, the judgment having been delivered by Lord Chancellor Eldon in Brown v. Higgs, (1801) 32 ER 473. The rule governing these cases is expressed by the Lord Chancellor in these words:
 "It is perfectly clear that where there is a mere power of disposing and that power is excluded this Court cannot execute it. It is equally clear that whenever a trust is created and the execution of that trust fails by the death of the trustee or by accident this Court will execute the trust."
 The matter was taken up in further appeal to the House of Lords in Brown v. Higgs. (1801) 34 ER 290 without success.
 18. The earlier case on the point is Cower v. Mainwaring, (1750) 26 ER 57. It contains the same principle as in (1799) 31 ER 366. The principle of Brown v. Higgs (supra) was affirmed by Chittey J. in Wilson v. Duguid, (1883) 24 Ch D 244. There, the relevant clause in the will as could be extracted from the Special Case in the report is as follows :


".......and from and after the decease of the survivor of them, the said William Duguid and Sarah his wife upon trust to assign the said premises upto and amongst such of the children of the said William Duguid and Sarah his wife then living, in such manner, shares, times, proportions as the said William Duguid and Sarah his wife jointly or the survivor of them separately, should by any writing appoint, and in case there should be no such child or children, then upon trust for the said Robert Keeling the younger for life, and after his decease upon trust to assign the said premises unto and amongst such of his children, and in such manner, shares, times and proportion as he should by any writing appoint."
 The question was whether all the children of Robert Keeling could take, whether all his children or those only who were living at his death in 1863 or those that were living at the death of Sara Duguid 13 years later or those living at the death of William Duguid subsequently. The answer of the learned Judge was that there was a trust for all the children of Robert in equal shares subject to a power of selection and distribution exercisable by him either by a deed inter vivos or a will. The learned Judge observed that if it was necessary to resort to technical reasoning, he would hold having regard to the words in which the will was formulated that there was a plain implication of trust.


19. Burrongh v. Philox, (1840) 41 ER 299 is in consonance with the doctrine of (1799) 31 ER 366. Lord Cottonham after discussing some of the leading cases said that "when the general intention appeared in favour of a class or a particular intention in favour of a class to be selected by another person and the particular intention fails by reason of the selection not being made the Court will carry into effect the general intention in favour of the class."
 Izod v. Izod (1863) 55 ER 95 is another case which applied the rule adumbrated in (1799) 31 ER 366.
 20. The principle that could be gathered from the various authorities is that if the will gives an indication that the testator or testatrix intended to to create a gift in favour of the objects of benevolence and the power conferred upon the appointee is only one of selection it will he regarded as in the nature of a trust. This intention must be sufficiently apparent on the will. If there is no gift over or express disposition in default of the exercise of that power a gift may be implied to the class equally in default of appointment or "the appointment is construed in the manner the appointee would select."
 But the absence of a gift-over does not necessarily disclose that a trust was created. It is not an absolute rule of law but only one of construction and is only an aid in gathering the intention of the testator. Where a power of selection is in the nature of a trust cast on the donee of that power if the selection is not made, the members of the class take equally. The Court will not permit the objects of the power to suffer by negligence or conduct of the donee of power but would put into effect the intentions of the testator and thus fasten on the property a trust for their benefit.


In such a situation, the Court will not permit the intention of the testator to be defeated by the donee of power not executing it. IP there is uncertainty as to the objects or subject of bounty or to the mode of distribution of the property if may be regarded as a naked power. If it is a mere power it lapses if it is not executed.
 Where the intention of the testator to benefit a person is reasonably clear and the subject-matter of the gift is also mentioned, the power given to an appointee will be in the nature of a trust so, that the non-exercise of it will not defeat the gift. The passages in "Jarman on Wills" pages 660 to 662 (8th edition) which contain the correct legal principles on the topic bear out the views expressed by us above.
 21. We will now proceed to ascertain the intentions of the testator in this respect bearing in mind the rules stated above. In the consideration of this question, it may not be out of place to take into account the surrounding circumstances. We have to gather the intention of the settlor by reading the instrument as a whole and in the context of the attendant circumstances. The group of persons who are intended to be benefited by the material clause were in impecunious circumstances and were running into debts.
 It could be seen from the draft of the will prepared two days earlier that the testator was anxious to give them the bequest in such a manner as to put it beyond the reach of the creditors. So, this would throw light on the unquestionable intention of the testator to make a gift to this class of persons. It cannot also be ignored that these three persons were closely related to him and the testator was anxious to make provision for every one oft his relatives, even remote ones and his faithful servants. Another significant circumstance is the absence of a gift-over.


Para 16 of the will shows that the legacies mentioned earlier were excluded and it was only the rest that was given to the residuary legatee. If really he had in mind the eventuality of the legacies failing, he would have directed this also to fall into the residue in default of its taking effect which means he was certain that the gift would not lapse, so, we think that the power of selection given was only in regard to the time of vesting.
 It has to be noted that the testator himself has set aside a 1/4th share and then said that if the executors desire they will go on giving that share to the three individuals mentioned therein. It is the use of the words ^^Hkkxeqyq f;PpqPpqMs ykxqu** meaning ''will go on giving a share" that has induced the Courts below to hold that the testator himself made the bequest of the corpus but left discretion to the executors as regards profits therefrom.
 We do not see any basis for this distinction between the corpus and the profits as there are no words to indicate that the testator himself had in mind such a distinction. We are alive to the fact that the bequest to these legatees is not expressed in so many words but we have to collect the intention of the testator not only from the words used but also from various other considerations. In this context, the remarks of the Privy Council in Narasimha Apparow v. Parthasaradhi Apparow, ILR 37 Mad 199 (PC) are quite pertinent:


"In all cases the primary duty of a Court is to ascertain from the language of the testator what were his intentions, i.e., to construe the will. It is true that in. so doing they are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationships, the probability that he would use word in a particular sense, and many other things which are often summed up in the somewhat picturesque figure "The Court is entitled to put itself into the testator's armchair."
 Having regard to the several factors indicated above, we feel that the only reasonable inference to be drawn is that discretion was given to the executors to choose the time of vesting and not unfettered discretion either to confer benefit on the class or deprive them altogether of any benevolence.
 22. Even assuming that the interpretation sought to be put on the will by the appellant were correct, we think it does not make any practical difference. In this case, the power was executed by two of the executors i.e., defendants 1 and 2, the third one refusing to join in the exercise of it. The question is whether that is a valid exercise of the power. It is urged by Sri Somasundaram that the power being a joint one it is not competent to two of them alone to execute it and that it shall be done by all the three and no legal consequences will spring from two of them alone acting in that behalf.


Support is sought for this proposition from ILR 37 Mad 199 (PC). In that case, the subject-matter of litigation concerned the zamindary of Nidadavol and Medur. The primary question for decision in that case was whether the power of adoption conferred by the then zamindar on his two wives under his last will and testament could be exercised by only one of the two. The Privy Council decided that as the testator gave a power to his two wives as personae designates it could not be executed by one of them alone, that the exercise of the power vested in the joint donee and the death of one of the donees of power put an end to the joint power.
 Having regard to the fact that notwithstanding that he could authorise one of the two widows to make the adoption he chose to vest the authority in the discretion of both the wives, their Lordships thought that it was the intention of the testa for that it should be exercised by both of them jointly. The decision rested on the ascertainment of the intentions of the testator from the language of the will.
 23. That this dictum is not applicable to an ordinary joint power is plain from the following sentence in the judgment of their Lordships:
 "The case is different where the power is vested not in personae designatae but in the occupants for the time being of a specified office such as executors or trustees, but that is not the case which we have to consider here."
 Surely, it cannot be disputed that this power of appointment was given to the three individuals mentioned above because they were holding office of: executors and not in their individual capacity.
 24. The rule enacted in Section 311 of the Indian Succession Act places the matter beyond controversy. Section 311 provides:


"When there are several executors or administrators, the powers of all may, in the absence of any direction to the contrary, be exercised by any one of them who has proved the will or taken out administration."
 If any authority is needed for the proposition enunciated above, reference may be made to Alamuru Sitaramaswamy v. Venkata Raghavacharyulu, 16 Mad LW 52: (AIR 1922 Mad 214) which laid down that such power could be exorcised by two out of the three executors appointed under a will. There can be no scope for the argument that the power in the instant case does not fall within the ambit of the section. The submission of the appellant in this behalf cannot therefore succeed. In our view, the exercise of the power by only two out of three executors is a valid one.
 25. It was alternatively contended that in the circumstances of the case it cannot be predicated that defendants 1 and 2 executed the power for the following reasons:
 26. In the written statement it was pleaded that these two executors chose to give effect to the intentions of the testator by agreeing to give a share to the three individuals in the profits soon after the death of the testator, but that the legatees had no interest in the corpus. The earlier part of the statement is in conflict with the attitude they assumed in the suit filed by the present 4th defendant for a declaration (O.S. 38 of 1943, District Court, Krishna/O.S. 53/1914 Sub Court, Bandar) in which it was stated that the executors were not prepared to exercise the power conferred on them.


Further, the Courts below found that the story of defendants 1 and 2 that they executed the power prior to the institution of the suit was unacceptable and that they had not done it prior to the filing of the suit. That being the case, it could not he said that there was in fact an exercise of the power by the executors, argued the learned counsel.
 27. We are unable to give weight to this argument. It is no doubt true that the position taken up by them in the suit filed by the fourth defendant is not in consonance with their having executed that power immediately after the death of the testator. But their written statements in this suit in clear terms brings out their willingness to exercise that power.
 Their previous attitude would not preclude them from doing what was expected of them by the testator. The present written statement can reasonably be construed as expressing their inclination to give effect to the wishes of the testator. The pleas that the legacy in question was only in regard to the profits also does not present any insurmountable difficulty. That is how the executors understood the bequest.
 It implies a decision on their part to give this group of beneficiaries what in their opinion was the subject-matter of that gift. That does not communicate the idea that they wanted to split it into two parts, exercise discretion with regard to one and refuse it with regard to the other. If ultimately the Court comes to the conclusion that the bequest comprised of the corpus as well as the profits accruing therefrom in the 1/4th share of the business, the exercisable power would attach to the corpus as well.
 In our judgment this is the only reasonable way of interpreting it. So, even on this assumption the plaintiff and others are entitled to the share allotted to them under the will of the testator.


28. This leads us to the question as to the period for which the plaintiff and the 4th defendant could claim the profits. It is contended for the appellants that the right of the plaintiff and the 4th defendant to receive the profits should be restricted to a period subsequent to the exercise of the power by the executors or from the date of the plaint when the Court would be deemed to have executed that power as such right flows only from either of the two acts.
 The profits accruing before that date would fall into the residue, continued Sri Somasundaram. On the other hand the learned Advocate-General tries to sustain the judgment of the trial Court on the argument that all the profits accruing before the date of vesting also go along with the corpus since the contingency contemplated by the testator had happened. He submitted that where there is a contingent legacy or a bequest but the testator directed the subject-matter to be set apart and when the contingency happens the property with its accretions would belong to the legatee.
 29. In support of this theory, he placed before us some decisions of English Courts, one of which is Re: Medlock; Ruffle v. Medlock (1886) 54 LT 828. In that case the testator bequested to his trustees a sum of 750 to pay and divide the same equally between such of his three grand children naming them as should be living at his death and should then have attained the age of twenty one years or have married, or should thereafter attain that age, or marry.
 It was further provided in the will that in default of any such person attaining a vested interest the 750 Pounds and the investments representing the same should fall into his residuary personal estate. The ratio underlying the judgment of Justice Kay was put thus:


"Therefore it seems to me upon principle that if it is clear upon the testator's will that he has directed the contingent legacy to be immediately set apart for the benefit of the objects of the gift when the contingency which he has indicated, happens, when that contingency does happen the fund set apart with all its accretions belongs to this contingent legatees. The question is whether in this case I find such a segregation."
 To the same effect is the judgment of Chitty, J. in Clements v. Pears all 1894-1 Ch. 665 which followed (1886) 54 LT 828. The judgment of the Court of Appeal in Woodin v. Glass, 1895-2 Ch, 309 contains an elaborate discussion on the topic. Lord Lindley reviewed all the earlier cases and re-affirmed the principles laid down in (1886) 54 LT 828 (supra) and 1894-1 Ch. 665 (supra).
 The effect of these decisions is, that if a contigent legacy is segregated and set aside from the general estate of the testator the income would not tall into the residue but goes with the legacy. But, if the subject matter of the gift is not directed to be set apart from the rest of the estate it would not carry the intermediate income, This is how the the proposition is stated in "Theobald on the Law of Wills" at p. 166 (11th edition):


"Before 1926 a contingent specific bequest of chattels real or pure personalty, did not carry the intermediate profits, unless the subject-matter of the gift was directed to be set apart from the rest of the testator's estate. The severance had to take place by virtue of directions given by the testator with reference to the subject-matter of the gift. If the subject-matter of the gift was set aside by the executors, merely because the rest of the estate had become distributable, the gift did not carry the intermediate income."
 We feel that the dictum laid down in these cases would not apply to wills in our country as there is a specific provision in the Indian Succession Act enacted in Section 349 to cover such cases and it is in these words :
 "The legatee of a specific legacy is entitled to the clear produce thereof, if any from the testator's death.
 Exception: A specific bequest contingent in its terms, does not comprise the produce of the legacy between the death of the testator and the vesting of the legacy. The clear produce of it forms part of the residue of the testator's estate."
 The illustration have also to be extracted as they are very helpful in interpreting the section:
 "(i) A bequeaths his flock of sheep to B. Between the death of A and delivery by his executor the sheep arc shorn or some of the ewes produce lambs. The wool and lambs are the property of B.
 (ii) A bequeaths his Government securities to B, but postpones the delivery of them till the death of C. The interest which falls due between the-death of A and the death of C belongs to B, and must, unless he is a minor, be paid to him as it is received.


(iii) The testator bequeaths all his four percent Government promissory notes to A when he shall complete the age of 18. A, if he completes that age, is entitled to receive the notes, but the interest which accrues in respect of them between the testator's death and A's completing 18, forms part of the residue."
 It is argued by the learned Advocate-General that the exception to Section 349 embodies the principle enunciated in the English decisions noticed above. That being so, the exception should be interpreted in the light of those, rulings. We arc unable to accede to this contention. The exception in clear and unambiguous language says that a specific contingent bequest would not comprise the produce between the two dates while the main section lays down that a specific bequest which is vested but in regard to which the enjoyment is postponed would carry the interim income from the time of the testator's death.
 It looks to us that the rule embodied in this section is a departure from the propositions enunciated in the authorities relied on by the learned Advocate-General. Therefore, if it is the exception to that section which applies to this case the legatees would not be entitled to the income between the two material dates. However, in our Opinion, the appropriate provision in this context is not the exception but the main section itself. We feel that this is a specific bequest which is vested in interest but the vesting is postponed to a time dependent upon the discretion of the executors."
 The case, therefore, resembles one which is contemplated by illustration 2. While in that illustration the enjoyment is postponed till the happening of a particular event, in the instant case the vesting is postponed till such time as the executors choose. In this view, we hold that the plaintiff and the 4th defendant could claim their due share of profits.


30. We will now dispose of another point that was argued by Sri Somasundaram, namely, that the legatees under the will are merely co-owners and do not occupy the position of partners. It is maintained that the essence of partnership is an agreement between the parties to share the profits and in the case of legatees or donees that element being absent they could not constitute a partnership.
 To substantiate this, our attention is invited to the definition. of partnership in Section 4 of the Indian Partnership Act as also to some passages in Mulla's Indian Partnership Act (2nd edition). The ingredients of partnership are set out at p. 302, Mulla's Indian Partnership Act (2nd edition) as follows;
 "(1) There must be an agreement entered into by all the persons concerned;
 (2) The agreement must be to share the profits of a business; and (3) the business must be carried on by all or any of the persons concerned, acting for all."
 At p. 305 the distinction between co-owners and partnership is pointed out thus;


At p. 305 the distinction between co-owners and partnership is pointed out thus;
 "There is not partnership without combination to carry on a business, and therefore the mere fact that persons own in common something which produces returns and divide those returns according to their respective interests, does not make them partners. 'Persons who have no mutual rights and obligations do not constitute an association because they happen to have a common interest or several interests in something which is to be divided between them'" etc. This point is devoid of any substance. There can be no quarrel with the proposition that a co-ownership is not the same thing as partnership. The mere fact that the legatees or donees under a will or a deed inter vivos as the case may be, or heirs at law happen to have common interest in some thing which is divisible amongst them would not make them partners. But, if such persons continue the business either after the death of the testator or when the inheritance falls as the case may be it could not be postulated that there was no partnership.
 They are not precluded from carrying on such a business. When the business is continued, there is an implied agreement amongst the various individuals having a common interest in the business. Such a principle is beyond dispute. This is the effect of Satferaju v. Pallaniraju, ILR 41 Mad 939: (AIR 1919 Mad 950). That aside, we fail to see what difference it makes for the purpose of this case.
 Even if the parties are in the position of co-owners they cannot be denied their share of the profits or the income derived from the business. When this was pointed out to the counsel for the appellants, he conceded that it was so and the position of his client is not in any way affected even if the legatees in question are regarded as co-owners.


31. There remains the question whether the 4th defendant is barred by the doctrine of res judicata under Section 11 of the Code of Civil Procedure. What is argued for the appellants is that the judgment in O.S. 38/43 secured by the 4th defendant operates as res judicata against him by the principle of 'might and ought' in Explanation 4 to Section 11 Civil Procedure Code, which says;
 "Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
 It is submitted that it was open to the 4th defendant in the prior litigation to advance the claim; founded on the will and he not having done so is precluded from agitating that matter in the present suit. O.S. 38/1943 was filed by the 4th defendant for a declaration that the will put forward by the executors and the 6th defendant was not a genuine one. It was averred in that suit that he entered into an agreement with Jaldu Venkata Subbarao the alleged testator by and under which he became a partner with a two annas share.
 The right of the plaintiff therein (4th defendant in the present suit) was questioned by the defendants in that suit inter alia on the grounds that he could not assail the genuineness of the will, for the reason that he was not interested in the estate of late Venkata Subbarao and that even otherwise his rights, if any, could not he affected by the will. It is in that context that two additional issues were framed:
 "5. Whether plaintiff has got a share in Musulipatam Timber Depot of Late J. V. Subbarao.


6. Whether the suit is not maintainable for reasons stated in paras 2 to 5 of 1st defendant's written statement?"
 Issue No. 5 was found against plaintiff. In view of that finding, it was decided that the plaintiff was not entitled to any relief in the suit and in the result, the suit was dismissed.
 32. The contention pressed upon us by Sri. Somasundaram is that an issue relating to a share of the 4th defendant was raised in that suit and that issue having been decided; against him that is conclusive against him. The 4th defendant was not prevented from resting his claim to a share on the alternative basis also i. e., under the will. Since he had not urged the alternative ground in that suit he is debarred from doing it in the present suit by force of Explanation 4 to S. 11 Civil Procedure Code.
 33. In support of this theory, a reliance is placed on Sree Muthoo Raghunadha Periyaoodya Taver v. Katama Nachiar, 11 Moo Ind App 50 (PC). In that case, there was an earlier suit instituted in 1832 for the recovery of the zamihdari of Shiva Ganga and there was an issue relating to the validity of a testamentary paper, but finally the party who claimed under that testamentary disposition rested his case on the assumption of the zamindar being undivided and abandoned his claim under the alleged will.


A decision was given against him on the ground that the zamindari was a self-acquired one and therefore the question of division or no division was immaterial. Thereupon, a fresh suit was instituted for the purpose of establishing the will. It was held by the Privy Council that the decision in the prior suit was final so far as it concerned that will as its validity was properly at issue in prior litigation and that was abandoned.
 We cannot derive any assistance from that case. There, an issue touching upon the validity of the will was specifically raised, but it was abandoned. Further, the plaintiff could have founded his claim upon the will alternatively in the prior suit. It was in such a situation that their Lordships applied the principle of res judicata.
 34. Doorga Pershad Singh v. Doorga Konwari, ILR 4 Cal 190 (PCJ is also another instance of the same principle. There a suit filed by a Hindu widow governed by the Mitakshara as the heiress of her deceased son was decreed. One of the parties to that Suit brought a fresh suit alleging a family custom which excluded female heirs and gave him a preferential right among the male heirs. It was held that plea was not open to him in the second suit by virtue of the doctrine of res judicata.
 The reason of the rule there is that he could have set up this defence and if proved would have negatived the claim of the plaintiff in the earlier suit on that objection. Masilamania Pillai v. Thiruvengadam Pilla, ILR 31 Mad 385 and Fateh Singh v. Jagannath Baksh Singh, ILR 47 All 158: (AIR 1925 PC 55) also illustrate the same proposition.


35. We do not think these cases have much of a bearing on the present enquiry. In our judgment, there is no scope for extending the doctrine of res judicata to this case. The subject-matter of the two suits as also the capacities in which they were brought are altogether different. The object of the first suit was to obtain a declaration that the will was forged one whereas in the present one the purpose is to get legacy given under the will. Therefore, the area and scope of the previous litigation are different from those of the present one.
 It is true in O.S. 38/1943 issue 5 bore on the right of the then plaintiff to a share in the partnership. But it should be remembered that that issue was founded upon a pleading that the suit was not maintainable since he had no interest in the estate that was the subject of the will of late Venkatasubbarao. That issue therefore became germane to the decision of the question as to the status of the plaintiff to maintain the suit. That this is so clearly appears from the judgment in that suit. In discussing the maintainability of the suit this is what the Subordinate Judge says:
 "In para 11 of the plaint, the only ground given by the plaintiff as cause of action to file this suit is that he has got an interest in the Masulipatam Timber Depot of Jaldu Venkata Subbarao. Since I have found that he has no sort of interest in the suit depot, the very foundation of the plaintiff's case is knocked out and he has therefore no locus standi to maintain this suit."


Thus, it is manifest that issue 5 referred to above was considered only as having a bearing on the right of the plaintiff to impugn the genuineness of the will. That being the case, it could not be said that the issues now arising in this case should be deemed to have been directly and substantially in issue in the earlier suit. It cannot also be ignored that the first suit was instituted by the 4th defendant in the capacity of one who had entered into partnership with Venkata Subbarao during his life-time while in the present the claim is as a legatee under the will of the said Venkata Subbarao.
 The cause of action also cannot be said to be the same to attract the applicability of the principle underlying Section 11. It is necessary that the cause of action on which both the suits are based should be the same. In ILR 31 Mad 385 relied on by the appellant, it is said:
 The real test, therefore, is whether the cause of action, or transaction on which the two suits are based, is the same, and not whether the transaction is sought to be established in different modes or by different means."
 Applying this criterion, it must be held that the bar of res judicata cannot come into operation in this case. This is not a case where the same transaction is sought to be established in two different modes, as in the cases cited for the appellants.


36. The fallowing decisions are nearer to the present case. In Thandavan v. Valliamma, ILR 15 Mad 336 the object of the previous suit was to get a declaration that the will was a forgery, but the property was not then sued for. The same party was held not to be precluded by the decree in the former suit declaring the genuineness of the will from impugning the validity of the will in a subsequent suit since in the former suit the property was not sued for.
 In Dhanapalu Chetti v. Anantha Chetti, 24 Mad LJ 418 a suit was instituted for a declaration that the properties disposed of by a testator were the undivided family properties of themselves and the testator. The suit was dismissed on the ground that the testator was divided by the time of his death. It was held that this was not a bar to a second suit as reversioner on the footing that the will gave only a widow's estate to the legatees. The doctrine of T. K. Ummatha v. T. K. Cheria Kunhamed, ILR 4 Mad 308 also accords with this.
 37. In the present case the 4th defendant could not have made any claim on the strength of the will as it would have been incongruous having regard to the nature of the suit there. It would have introduced an utterly inconsistent claim in that suit. For these reasons, we hold that the adjudication in the previous suit docs not stand in the way of the 4th defendant recovering his share of the legacy under the will. We, therefore, reject this contention also.