whether "premium" collected by the appellant-Company on its subscribed share capital is “capital employed in the business of the Company" within the meaning of Section 35D of the Act so as to enable the Company to claim deduction of the said amount as prescribed under Section 35D of the Act? = Section 35D(3) of the Act with which we are concerned in these appeals reads as under: “Where the aggregate amount of the expenditure referred to in sub- section(2) exceeds an amount calculated at two and one-half percent- (a) of the cost of the project, or where the assessee is an Indian company, at the option of the company, of the capital employed in the business of the company, the excess shall be ignored for the purpose of computing the deduction allowable under sub- section(1); [Provided that where the aggregate amount of expenditure referred to in sub- section(2) is incurred after the 31st day of March, 1998, the provisions of this sub-section shall have effect as if for the words “two and one-half per cent”, the words “five percent” had been substituted.]* *Ins. by the Finance(No.2) Act, 1998(2) of 1998), sec,14(b)(w.e.f. 1-4- 1999)” 15) The expression "capital employed in the business of the company" is defined in the Explanation appended to the Section in clause (b) which reads as under: “(b) “capital employed in the business of the company” means- (i) in a case referred to in clause(i) of sub-section(1), the aggregate of the issued share capital, debentures and long term borrowings as on the last day of the previous year in which the business of the company commences; (ii) in a case referred to in clause(ii) of sub-section(1), the aggregate of the issued share capital, debentures and long term borrowings as on the last day of the previous year in which the extension of the industrial undertaking is completed or, as the case may be, the new industrial unit commences production or operation, in so far as such capita, debentures and long term borrowings have been issued or obtained in connection with the extension of the industrial undertaking or the setting up of the new industrial unit of the company;”- Section 78 of the Companies Act which deals with the "issue of shares at premium and discount" requires a Company to transfer the amount so collected as premium from the shareholders and keep the same in a separate account called "securities premium account". It does not anywhere says that such amount be treated as part of capital of the company employed in the business for one or other purpose, as the case may be, even under the Companies Act. In the light of foregoing discussion, we find no merit in these appeals. The appeals thus fail and are accordingly dismissed.

                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.2162 OF 2007


M/s Berger Paints India Ltd.          ….Appellant(s)

                                   VERSUS

C.I.T., Delhi-V                        …Respondent(s)

                                    WITH

                        CIVIL APPEAL No.2163 OF 2007


M/s Berger Paints India Ltd.          ….Appellant(s)

                                   VERSUS

C.I.T., Delhi-V                        …Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    These appeals are filed against the final judgment  and  orders  dated
15.05.2006 passed by the High Court of Delhi at New  Delhi  in  Appeal  Nos.
ITA No. 799 of 2004 and 797 of 2004 whereby the  High  Court  dismissed  the
appeals filed by the  appellant  herein  arising  out  of  the  order  dated
26.04.2004 and 25.08.2004 passed by the Income Tax Appellate  Tribunal,  New
Delhi(hereinafter   referred   to    as    "the    Tribunal)    in    I.T.A.
No.2307/Del/2000(Assessment       Year       1996-97)       and       I.T.A.
No.1434/Del/2001(Assessment Year 1997-98) respectively.
2)    In order to appreciate the issue involved  in  these  appeals,  it  is
necessary to state few relevant facts infra.
3)    The appellant  is  a  Limited  Company  engaged  in  the  business  of
manufacture and sale of various kinds of paints.  For  the  Assessment  Year
1996-97,  the  appellant  (assessee)  filed  their  income  tax  return  and
declared the total income at Rs.3,64,64,527/-.  It was, however, revised  to
Rs.3,58,92,771/- and then again revised to  Rs.  3,57,26,644/-.  The  return
was then processed by the Assessing Officer(in short “A.O.”)  under  Section
143 (1B) of the  Income Tax Act (hereinafter referred to as  “the  Act”)  at
an amount of Rs.3,63,03,128/-.
4)    A notice was issued by the A.O.  to  the  appellant  (assessee)  under
Section 143(2) of the Act which called upon the appellant to explain  as  to
on what basis the appellant had claimed in the return a deduction under  the
head “preliminary expenses” amounting to Rs.7,03,306/-  being  2.5%  of  the
"capital employed in the business of the company" under Section 35D  of  the
Act.
5)     The  appellant  (assessee)  replied  to  the  notice.  The  appellant
(assessee) contended therein that it had issued shares on a  premium  which,
according to them, was a part of the capital  employed  in  their  business.
The appellant, therefore, contended that it was on this  basis,  it  claimed
the said deduction and was, therefore, entitled  to  claim  the  same  under
Section 35D of the Act.
6)    The A.O. did not agree with the explanation given  by  the  appellant.
He was of the view that the expression "capital employed in the business  of
the company" did not include the "premium amount" received by the  appellant
on share capital. The A.O. accordingly calculated  the  allowable  deduction
under Section 35D of the Act at Rs.1,95,049/-  and disallowed the  remaining
one by adding back to  the  total  income  of  the  appellant  for  taxation
purpose.
7)    The appellant, felt aggrieved, filed appeals before  the  Commissioner
of Income Tax (appeals). The Commissioner was of the  view  that  since  the
"capital employed" consists of subscribed capital, debentures and long  term
borrowings, any  "premium" collected by the appellant-Company on the  shares
issued by it should also be included in the said expression and  be  treated
as the capital contributed by the shareholders. The  Commissioner  also  was
of the view that the share premium account, which is  shown  as  reserve  in
the balance sheet of the Company, was in the nature of the capital  base  of
the Company and hence deduction under Section 35D of the Act was  admissible
with reference to  the  said  amount  also.  Accordingly,  the  Commissioner
allowed the appeals,  set  aside  the  order  of  A.O  and  disallowance  of
Rs.5,08,257/- made by the A.O. and, therefore, deleted  the  said  sum.   In
other  words,  the  Commissioner  allowed  the  deduction  claimed  by   the
appellant of the entire amount under Section 35D of the Act.
8)    The Revenue, felt aggrieved, filed appeals before  the  Tribunal.  The
Tribunal  allowed  the  appeals  and  reversed  the  view   taken   by   the
Commissioner of Income Tax (Appeals). The Tribunal  held  that  the  premium
collected by the appellant-Company on the share capital did  not  tantamount
to "capital employed in the business of the Company" within the  meaning  of
Section 35D(3) of the Act.
9)    It is against these orders, the Company-assessee  felt  aggrieved  and
filed two separate appeals under Section 260A of the  Act  before  the  High
Court. By impugned judgment/orders, the High  Court  dismissed  the  appeals
and affirmed the orders of the Tribunal.
10)   Felt aggrieved, the Assessee-Company has filed  these  appeals  before
this Court.
11)   The short question that falls for consideration in  these  appeals  is
whether "premium" collected  by  the  appellant-Company  on  its  subscribed
share capital is “capital employed in the business of  the  Company"  within
the meaning of Section 35D of the Act so as to enable the Company  to  claim
deduction of the said amount as prescribed under Section 35D of the Act?
12)   Heard Mr. Radha Shyam Jena, learned counsel for the  appellant-Company
and Mr. Mukul Rohtagi, learned Attorney General for the respondent.
13)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find no merit in the appeals.
14)   Section 35D(3) of the  Act  with  which  we  are  concerned  in  these
appeals reads as under:
“Where  the  aggregate  amount  of  the  expenditure  referred  to  in  sub-
section(2) exceeds an amount calculated at two and one-half percent-
(a) of the cost of the project, or
where the assessee is an Indian company, at the option of  the  company,  of
the capital employed in the business of the company,  the  excess  shall  be
ignored for the purpose of computing  the  deduction  allowable  under  sub-
section(1);

[Provided that where the aggregate amount of expenditure referred to in sub-
section(2) is incurred after the 31st day of March, 1998, the provisions  of
this sub-section shall have effect as if for the  words  “two  and  one-half
per cent”, the words “five percent” had been substituted.]*
*Ins. by the Finance(No.2) Act,  1998(2)  of  1998),  sec,14(b)(w.e.f.  1-4-
1999)”

15)   The expression "capital employed in the business of  the  company"  is
defined in the Explanation appended to  the  Section  in  clause  (b)  which
reads as under:
“(b) “capital employed in the business of the company” means-
(i) in a case referred to in clause(i) of sub-section(1), the  aggregate  of
the issued share capital, debentures and long  term  borrowings  as  on  the
last day of  the  previous  year  in  which  the  business  of  the  company
commences;
(ii)  in a case referred to in clause(ii) of sub-section(1),  the  aggregate
of the issued share capital, debentures and long term borrowings as  on  the
last day of the previous year in  which  the  extension  of  the  industrial
undertaking is completed or, as the case may be,  the  new  industrial  unit
commences production or operation, in so far as such capita, debentures  and
long term borrowings have been issued or obtained  in  connection  with  the
extension of the industrial  undertaking  or  the  setting  up  of  the  new
industrial unit of the company;”

16)   The Division Bench of the High Court in the  impugned  order  examined
the question lucidly. The learned Judge T.S. Thakur,  J.  (as  His  Lordship
then was and later became CJI) speaking for the Bench held as under:
“6.   A careful reading of the above would show  that  in  the  case  of  an
Indian company like the  appellant,  the  aggregate  amount  of  expenditure
cannot exceed 2.5% of the capital employed in the business of  the  Company.
The crucial question, therefore, is as to what is meant by capital  employed
in the business of the Company for it is the  amount  that  represents  such
capital that would determined  the  upper  limit  to  which  the  amount  of
allowable deduction can go.  The expression  has  been  given  a  clear  and
exhaustive definition in the explanation to sub-section 3.  It reads as:

“(b)………………………………………………………………………………………”

“7.  The above clearly shows that capital employed in the  business  of  the
company is  the  aggregate  of  three  distinct  components,  namely,  share
capital, debentures and long term borrowings as on the dates relevant  under
sub-clauses(i) and (ii) of Clause(b) of  the  explanation  extracted  above.
The term ‘long term borrowing’  has  been  defined  in  clause  (c)  to  the
explanation.  It is nobody’s else that the premium collected by the  Company
on the issue of shares was a long term borrowing either  in  fact  or  by  a
fiction of law.  It is also nobody’s case that the premium collected by  the
Company was anywhere near or akin to a debenture.  What  was  all  the  same
argued by the counsel for the appellant was that premium was a part  of  the
share capital and had therefore to be reckoned as ‘capital employed  in  the
business of the  company’.   There  is,  in  our  view,  no  merit  in  that
contention.  The Tribunal has pointed out that  the  share  capital  of  the
Company as borne out by its audited accounts is limited to  Rs.7,88,19679/-.
  The  company’s  accounts  do  not  show  the  reserve   and   surplus   of
Rs.19,66,36,734/- as a part of its issued, subscribed and paid  up  capital.
It is true that the surplus amount of Rs.19,66,36,734/- is taken as part  of
share holders fund but the same was not a part  of  the  issued,  subscribed
and paid up capital of the Company.  Explanation to Section  35D(3)  of  the
Act does not include the reserve and surplus of the Company  as  a  part  of
the capital employed in the business of the Company.  If the  intention  was
that any amount other than the  share  capital,  debentures  and  long  term
borrowings of the Company ought  to  be  treated  as  part  of  the  capital
employed in the business of the company, the Parliament would have  suitably
provided for the same.  So long as that has not been done  and  so  long  as
the capital employed in the business of the Company  is  restricted  to  the
issued share capital, debentures and long term borrowings, there is no  room
for holding that the premium, if any, collected by the Company on the  issue
of its share capital would also constitute a part of  the  capital  employed
in the business of the Company for purposes of deduction under Section  35D.
 The Tribunal was, in that  view  of  the  matter,  perfectly  justified  in
allowing the appeal filed by the Revenue and restoring the order  passed  by
the Assessing Officer.”

17)   We are in complete agreement with the view taken  by  the  High  Court
quoted  supra   as,   in   our   considered   opinion,   the   well-reasoned
judgment/order of the High Court correctly explains the true meaning of  the
expression employed in sub-section3(b) of Section 35D read with  Explanation
(b) quoted above, calling no interference in the appeals.
18)   In our considered opinion also, the "premium amount" collected by  the
Company on its subscribed issued share capital is not and cannot be said  to
be the part of  "capital employed in the business of the  Company"  for  the
purpose of Section 35D(3)(b) of the Act and hence the appellant-Company  was
rightly held not entitled to claim any deduction in relation to  the  amount
received towards premium from its various shareholders on the issued  shares
of the Company.
19)   This we say for more than one reason. First, if the intention  of  the
Legislature were to treat the amount of  "premium" collected by the  Company
from its shareholders while issuing the shares to be the part of    "capital
employed  in  the  business  of  the  company",  then  it  would  have  been
specifically said so in the Explanation(b) of sub-section(3) of Section  35D
of the Act. It was, however, not said.
20)   Second, on the other hand, non-mentioning of the words  does  indicate
the legislative intent that the Legislature did not  intend  to  extend  the
benefit of Section 35D  to  such  sum.  Third,  these  two  reasons  are  in
conformity with the view taken by this Court in the case of Commissioner  of
Income Tax, West Bengal vs. Allahabad Bank Ltd., (1969) 2 SCC 143.   wherein
the question arose as to whether an amount of  Rs.45,50,000/-   received  by
the assessee (Bank) in cash as "premium" from its  various  shareholders  on
issuing share on premium is liable to be included in their paid  up  capital
for the purpose of allowing the assessee to claim rebate under  Paragraph  D
of Part II of the first Schedule to the Indian Finance Act 1956.
21)   It was noticed therein that Part II -  paragraph  D  while  specifying
the rates of super tax had added an Explanation, which reads as under:

Explanation.—For the purposes of para D of this part—
(i) the expression ‘paid-up capital’ means the paid-up capital  (other  than
capital entitled to a dividend at a fixed rate) of the  Company  as  on  the
first day of the previous year relevant  to  the  assessment  for  the  year
ending on 31st day of March, 1957, increased by  any  premiums  received  in
cash by the company on the issue of its shares, standing to  the  credit  of
the share premium account as on the first day of the previous year ….”
                             (Emphasis supplied)

22)   This Court speaking through the learned Judge J.C. Shah,  J.  (as  His
Lordship then was and later became CJI) after examining  the  issue  in  the
context of Para D  read  with  its  Explanation  held  that  “share  premium
account” was liable to be included in the paid up capital for  the  purposes
of computing rebate. One of the reasons to allow  such  inclusion  with  the
paid up capital was that such inclusion was permitted by the specific  words
in the Explanation. Such was, however, not the case here.
23)   As rightly pointed out by the learned Attorney General  appearing  for
the Revenue, the Companies Act provides in its Schedule V- Part II  (Section
159) a Form of Annual Return, which is  required  to  be  furnished  by  the
Company having share capital every year. Column  III  of  this  Form,  which
deals with capital structure of  the  company,  provides  the  break  up  of
"issued shares capital break up". This column does not  include  in  it  the
"premium amount collected by  the  company  from  its  shareholders  on  its
issued share capital". This is indicative of the fact that  such  amount  is
not considered a part of the capital unless it is specifically  provided  in
the relevant section.
24)   Similarly, as rightly pointed out, Section 78  of  the  Companies  Act
which deals with the  "issue of shares at premium and discount"  requires  a
Company  to  transfer  the  amount  so  collected  as   premium   from   the
shareholders and keep the same in  a  separate  account  called  "securities
premium account". It does not anywhere says that such amount be  treated  as
part of capital of the company employed in the business  for  one  or  other
purpose, as the case may be, even under the Companies Act.
25)   In the light of foregoing  discussion,  we  find  no  merit  in  these
appeals. The appeals thus fail and are accordingly dismissed.

………...................................J.
                                  [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
March 28, 2017
-----------------------
15

Latches in Investigation: (i) One of the major lacuna in the case is non- mentioning of the names of A2 & A5 by PW1 to the police at the earliest point of time. The High Court went wrong in observing that this will not amount to latches and it will not go to the root of the matter. These are the glaring defects which will virtually collapse the case of the prosecution. It is no doubt true that the FIR need not be an encyclopedia and also it need not contain all the details but when the names of A2 & A5 were not figured in the FIR it casts a doubt on the whole episode. According to the eyewitnesses, accused had inflicted major injuries and that was the reason for the death of the deceased. It is expected from a prudent man to disclose the names of accused. If the accused cannot be identified or not known to the PWs then it is not a serious thing to dwell upon but these people are very much known to PW1’s family. It therefore creates a serious doubt in the mind of the Court. (ii) The other glaring defect in the investigation is when A1 has sustained injuries and admittedly a complaint was given by his father, a duty is cast upon the prosecution to explain the injuries. The doctor has also categorically deposed about the injuries sustained by A1. These lapses on the part of Investigating Officer assume greater importance and prove to be fatal to the case of the prosecution. When the Investigating Officer deposed before the Court that the complaint given by A5’s father was investigated and he filed ‘B form’ and the case was closed, not marking the document is fatal to the case of prosecution. Investigating Officer further suppressed the fact that there was a direct evidence to seize the gun used by the deceased and register a complaint against the deceased under the relevant provisions of the Arms Act which is evident from the endorsement made on Exhibit P22. (iv) The Investigating Officer himself deposed that he had not seen the MOs and as per the punch witnesses also they were not seized. The Doctor (PW10) deposed that those articles were not placed before her and no opinion was sought. (v) PW2 was also an injured witness. According to the prosecution he was injured on 27-02-1991. But he went to the hospital on 08- 03-91 and the reasons for delay were left unexplained. It is settled law that mere latches on the part of Investigating Officer itself cannot be a ground for acquitting the accused. If that is the basis, then every criminal case will depend upon the will and design of the Investigating Officer. The Courts have to independently deal with the case and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record. Medical Evidence: When we look at the medical evidence, the Doctor (PW10) has categorically stated that the weapons were not sent to her. In the chief examination, it was stated that the injuries 1 & 4 on the body of the deceased are possible with chopper and club. But in the cross examination it was deposed that even if a person falls on a sharp object these injuries could happen. According to PW3, the deceased fell into the drain. As per the evidence of prosecution witnesses, accused by using the sharp edge of the weapon assaulted on the right side of the forehead but the Doctor’s evidence in this regard is that the deceased has not sustained incised wound on the forehead. PW10 further stated that if a person is assaulted with an object like MO4 it would result in fracture of frontal bone. (ii) The other ground is, when the father of A5 gave a complaint against the deceased’s family as the police filed ‘B form’ the same was closed and not filed before the Court. Apart from that, the direction of the Court to seize the gun of the deceased and file a case under the relevant provisions of the Arms Act was not brought to the notice of the Court. Non explanation of injuries on A5 is another major defect. Once there is a clear contradiction between the medical and the ocular evidence coupled with severe contradictions in the oral evidence, clear latches in investigation, then the benefit of doubt has to go to the accused. Going by the material on record, we disagree with the finding of the High Court that the ocular evidence and the medical evidence are in conformity with the case of prosecution to convict the accused. The High Court has brushed aside the vital defects involved in the prosecution case and in a very unconventional way convicted the accused. The Court should always make an endeavor to find the truth. A criminal offence is not only an offence against an individual but also against the society. There would be failure of justice if innocent man is punished. The Court should be able to perceive both sides i.e. the prosecution as well as the defence and in our considered opinion the judgment of the High Court suffers from several defects as discussed in the preceding paragraphs. Hence we deem it appropriate to set aside the judgment of the High Court and re-affirm the order of acquittal passed by the Trial Court. The accused shall be set at liberty provided they are not required in any other case. Accordingly the appeals are allowed.

                                                                  REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 635 OF 2006


KRISHNEGOWDA & ORS.                                ... APPELLANTS

VERSUS

STATE OF KARNATAKA BY ARKALGUD POLICE        ... RESPONDENT

                                    WITH

                      CRIMINAL APPEAL NO. 1067 OF 2006

NANJE GOWDA & ANR.                                 ... APPELLANTS

VERSUS

STATE OF KARNATAKA BY ARKALGUD POLICE        ...RESPONDENT


                                  JUDGMENT


N.V. RAMANA, J.


These two appeals arise out of a common judgment and  order  passed  by  the
Division Bench of the  High  Court  of  Karnataka  in  Criminal  Appeal  No.
763/1999 wherein the High Court has set aside the order of acquittal  passed
by the Trial Court and convicted  the  accused  under  various  sections  of
Indian Penal Code (for short ‘IPC’).

2.          The Criminal Appeal 635/2006 is preferred  by  accused  [A1,  A4
and A10] who were convicted by the High Court  for  the  offence  punishable
under Section 324 read with Section 149, IPC and sentenced them  to  undergo
imprisonment for a period of one year and to  pay  a  fine  of           Rs.
500/-, in default to undergo 2 months further imprisonment. A10 was  further
convicted for the offence under Section 323, IPC  and  imposed  fine  of  Rs
500/- and in default to undergo imprisonment  for  a  further  period  of  2
months.

3.          The Criminal Appeal 1067/2006 is preferred by accused Nos.  2  &
5 who were convicted by the High Court for  the  offences  punishable  under
Section 302 read with 34, IPC and Section 324  read  with  149,  IPC.  Under
Section 302 they were sentenced to undergo  life  imprisonment  and  to  pay
fine of Rs 10,000/-, in default to  undergo  further  imprisonment  for  one
year. Under Section 324  the  punishment  imposed  was  imprisonment  for  a
period of one  year  and  fine  of  Rs  500/-  and  in  default  to  undergo
imprisonment for a further period of 2 months.
4.          Brief facts as unfolded by the prosecution are that  Chennegowda
(deceased), the resident of Mudugere Village, had  12  acres  of  land  near
Masarangala Village out of which  eight  acres  were  consisting  of  coffee
plantation and four acres were wet land. Due to construction of bridge  over
Hemavathi river which caused submersion of some  surrounding  lands  in  the
backwaters, Channegowda and his sons used to pass through the cart track  in
Survey No. 42 and other lands in Survey No.  43  belonging  to  the  accused
persons since they were located between coffee  estate  of  Chennegowda  and
the road to Kendenne village, to have  access  to  his  coffee  estate,  the
deceased could get a road sanctioned from the authorities.  Accused  No.  7,
Rajappa got temporary injunction against that  sanction  which  led  to  the
deceased to move the Court and got the temporary injunction vacated. When  a
Court commissioner inspected the  disputed  lands,  a  quarrel  had  erupted
between the accused and victim parties. The Panchayat settled the  issue  by
directing the deceased to pay Rs.1000/- to the brother of  Accused  No.  13.
Accordingly the payment was made but  the  enmity  between  the  two  groups
continued.

5.          In the backdrop of this  factual  scenario,  on  27th  February,
1991 at about 8 am, when Sannegowda (PW1), Channegowda (PW5) and  Swamygowda
(PW6) - all belonging to victim party, were carrying milk to the  collection
centre of Daarikongalale village, accused Nos. 1 to 7 and  9  to  13  formed
into an unlawful  assembly  and  restrained  Sannegowda  (PW1)  near  Higher
Primary School and assaulted him with clubs and stones.  At  that  point  of
time Channegowda (father of PW1), Mogannagowda  (PW2)  and  Papegowda  (PW3)
came and interfered questioning the accused reasons for  the  assault.  Then
Puttegowda (A5) and Nanjegowda (A2) attacked  Channegowda  (father  of  PW1)
seriously injuring  him  with  chopper  and  club  respectively.  Sannegowda
(PW1), Moganangowda (PW2) and Papaegowda (PW3) were injured at the hands  of
A2 and A3. The injured were shifted to hospital and the  same  was  informed
to police.

6.          The Investigating Officer, Lakshmi Prasad, PSI  (PW19)  recorded
the statement (Ex.P1) of Sannegowda (PW1) and registered  the  case  against
Krishnegowda  (A1)  and  five  others  for  the  offences  punishable  under
Sections 143, 147, 148 and 324 read with Section 149,  IPC.  Meanwhile,  the
seriously injured Channegowda (father of PW1) was treated in  S.C.  Hospital
at Hassan for two days, thereafter he was  shifted  to  NIMHANS,  Bangalore,
from there to  Victoria  Hospital,  Bangalore  and  finally  again  to  S.C.
Hospital at Hassan where on 6th March, 1991 he succumbed  to  the  injuries.
Consequently, charge under Section 302, IPC was added against  the  accused,
inquest report prepared, postmortem conducted, statements of witnesses  have
been recorded and Investigating Officer got  prepared  sketch  of  scene  of
occurrence and seized choppers and clubs from the place  of  occurrence  and
sent it to Forensic Science Laboratory at Bangalore.

7.          The Principal Sessions Judge at Hassan took  cognizance  of  the
offence and framed charges. Before framing  charges,  accused  No.  8  died.
Hence charges were framed against remaining  12  accused  for  the  offences
punishable under Sections 148, 302/149,  324/149  and  323/249  of  IPC.  In
order to bring home the  guilt  of  the  accused,  prosecution  examined  22
witnesses, PWs 1 to 6 and 11 being eyewitnesses, marked  Ext.  P-1  to  P-41
and MOs 1 to 6 were produced at trial. However, in defence  no  witness  was
examined on behalf of the accused.

8.          The Trial Court after a full fledged  trial  has  acquitted  the
accused as the Court came to the conclusion that the prosecution  could  not
prove the guilt of the accused beyond reasonable doubt. The  whole  emphasis
and basis for the Trial Court to  come  to  such  a  conclusion  is  on  the
following:
The evidence of the eyewitnesses is inconsistent and  not  trustworthy.  The
first information report did not contain  the  names  of  accused  and  this
would lead to the inference that the evidence given by PW1 before the  Court
is an obvious improvement.
The evidence of PW2 is that A11 & 12 hit the deceased  with  stones  on  his
chest which is  not  spoken  by  PW1  and  also  not  supported  by  medical
evidence. When there is inconsistency between medical  evidence  and  ocular
evidence, the benefit of doubt should be given to the accused.
The omission on the part of the prosecution to explain the injuries  on  the
person of the accused assumes greater importance. In view  of  the  inherent
improbabilities, the serious  omissions  and  infirmities,  the  prosecution
miserably failed to prove the case.
The police suppressed the factum of the direction given to police  to  seize
the gun held by the deceased and to  include  an  offence  punishable  under
relevant Sections of the Arms Act.
Accused Nos. 7-13 were implicated in the  case  after  06-03-1991  as  their
names do not find place in the first or second FIR.
The prosecution has not stated  PW4  as  witness  and  PW  1  &  2  had  not
mentioned about his presence at the time of occurrence.
The evidence of PW5 is not consistent with other witnesses.
The evidence of the Investigation Officer and PW 1 & 2 with  regard  to  the
arrest is inconsistent with others and appears to be tainted.
The blood found on MO4 is of ‘O’ group and both  the  blood  groups  of  the
deceased and A5 are of same group.
The statement given by PW1 is inconsistent with previous statement  recorded
by police u/sec 171, CrPC.
PW2 who was injured  on  27-02-1991  went  to  hospital  on  08-03-1991  for
examination and treatment which creates an amount of doubt.

      Basing on the above inconsistent  evidence  of  prosecution  witnesses
with that of medical evidence and other probable circumstances, Trial  Court
came to the conclusion that the prosecution could not  prove  the  guilt  of
the accused beyond reasonable doubt  and  therefore  acquitted  the  accused
from the offences charged against them.

      Aggrieved by the judgment passed by the  Trial  Court,  the  State  of
Karnataka carried the matter to the High Court. The Division  Bench  of  the
High Court being conscious of the  powers  of  the  appellate  Court  in  an
appeal  against  acquittal  observed  that,  appellate  Court   should   not
interfere with the order of the acquittal, if the view taken  by  the  Trial
Court is also a reasonable view of the evidence on record and  the  findings
recorded by the Trial Court are not manifestly erroneous,  contrary  to  the
evidence on record or perverse proceedings. The High  Court  went  ahead  to
scrutinize the legality or otherwise of the order of acquittal.

      The High Court has compartmentalized the reasons given  by  the  Trial
Court and thereafter  dislodged  the  same  one  by  one  on  the  following
grounds:
PW1 to PW3 who are sons of deceased consistently deposed about the  injuries
inflicted by A2 & A5 and their evidence  is  consistent  and  unshaken.  The
evidence of PW1 establishes  factum  of  happening  of  the  incident.  Even
though there were contradictions in the evidence of eye  witnesses  it  does
not affect the pith and substance  of  eye  witnesses.  Hence  need  not  be
considered.
Though these witnesses are interested witnesses  they  are  natural  witness
and nothing contra is elicited as such their evidence has to be  taken  into
consideration.
Though the evidence with regard to injuries on the  chest  of  the  deceased
allegedly inflicted by A11 & 12 is contrary to medical evidence,  still  the
reliable testimony of the  eyewitnesses  cannot  be  disregarded  and  these
contradictions will not go to the root of the matter.
The medical evidence  of  PW10  fully  corroborates  with  the  evidence  of
eyewitnesses with regard to the injuries sustained by the  deceased  at  the
hands of A 2 & 5.
The motive for the commission of offence is successfully established.
The investigation by the police is fair and genesis of the incident  is  not
suppressed as everything is in black and white.
The presence of PSI (PW 19) at the place of occurrence before recording  the
complaint (Ex-P1) is not a serious infirmity in the  prosecution  case  when
the evidence of eyewitnesses is straightforward  and  there  is  nothing  to
show that Ex-P1 was concocted.
The other aspects such as initially arresting Sannegowda  and  Mogannagowda,
sons of deceased and later on  transposing  them  as  PWs  1  &  2,  medical
examination of PW 2 taking place on 08-03-1991 when he was injured on 27-02-
1991, the MOs 1, 2 and 4 stained with blood and the blood group of  deceased
and A5 being same ‘O’ group, inconsistency in the evidence of  PW1  relating
to non mentioning of the names of A2 and A5 are not at all  ‘fatal’  to  the
case of the prosecution.
The seizure of weapons from the place of  occurrence  and  later  at  police
station, are not serious defects.
The High Court found only A2 & A5 had common intention in  taking  away  the
life of the deceased and others did not have common intention.
A1 to A5, A9 and A10 have common object of assaulting PW1.  The  High  Court
felt that Trial Court’s view was perverse, erroneous  and  contrary  to  the
evidence available on record, hence it is a fit  case  where  the  appellate
Court has to interfere with the order  of  acquittal  passed  by  the  Trial
Court.

      The High Court found A2 and A5 guilty of committing the offence  under
Section 302/34, IPC and sentenced them to life imprisonment  and  to  pay  a
fine of Rs.10,000/- each, in default, to suffer further imprisonment of  one
year. A1 to A5, A9 and A10 were convicted under  Section  324/149,  IPC  and
sentenced to suffer imprisonment for a period of one year and  to  pay  fine
of Rs.500/-, in default, to  suffer  further  imprisonment  of  two  months.
Whereas A6, A7, A9, A10 and A13 were convicted under Section  323,  IPC  and
they were directed to pay a fine of Rs.500/-,  in  default,  to  suffer  two
months  imprisonment.  The  substantive  sentences  were  directed  to   run
concurrently.

      That is how A 1, 3, 4 and 9 are before this Court by  way  of  special
leave petition. On 11th May, 2006 this Court granted leave to  accused  Nos.
1, 3 and 4 making them appellants in Criminal Appeal No. 635  of  2006.  The
Court however dismissed the S.L.P. of accused No. 9, Ramesha, as he has  not
surrendered. Accused Nos. 2 and 5 have preferred Criminal  Appeal  No.  1067
of 2006 challenging the order of the High Court.


      We have heard the  learned  counsels  appearing  on  either  side  and
perused the material available on record.


      Learned counsel appearing for the appellant  has  submitted  that  the
Court below has failed to appreciate the case and counter  case.  There  are
several contradictions in the evidence of prosecution witnesses  on  several
material aspects and the same goes to the root of the matter.  It  is  urged
that the medical evidence is not in consonance  with  the  ocular  evidence.
The prosecution witness has concealed the genesis of the  incident  and  did
not place the true facts before the Court.  Because  the  prosecution  party
was politically influential, the complaint lodged by the father  of  A5  was
not investigated properly by the police. Even the injuries on  A5  were  not
properly explained and these are latches on the part  of  investigation  and
fatal to the case of prosecution. In support  of  the  same  senior  counsel
relied on the judgment of Takhaji Hiraji  V. Thakore Kubersing Chamansing  &
ors, (2001) 6 SCC 45 and also placed reliance on State of  MP  V.  Mishrilal
(dead) & Ors., (2003) 9 SCC 426. Non- mentioning of the names of A2 & A5  at
the earliest point of time is lapse on the part  of  investigation  and  the
High Court committed a serious error of law  in  not  taking  these  factors
into consideration. The learned senior counsel finally  submitted  that  the
High Court based its conclusion by ignoring  several  material  factors  and
hence the impugned judgment needs to be set aside.
      Learned  counsel  appearing  for  the  State  supported  the  impugned
judgment.

      Now the issue that falls for consideration before us  is  whether  the
High Court was justified in reversing the order of acquittal passed  by  the
Trial Court.

      In view of the voluminous evidence placed on record and the  divergent
views taken by the  Courts  below,  it  has  become  imperative  for  us  to
evaluate the material on record in detail to  come  to  a  just  conclusion.
First and foremost we would like to analyze the  oral  evidence  adduced  by
the prosecution in support of its case.

Oral Evidence: (i) PWs 1 to 3 are sons of the deceased. As rightly  observed
by the High Court their evidence is consistent  about  one  aspect  that  is
with regard to the injuries sustained  by  the  deceased  at  the  hands  of
accused, but the evidence on record makes it clear that  there  are  several
contradictions in the evidence of the witnesses which creates doubt  in  the
mind of the Court as rightly observed by the Trial Court.

      (ii) According  to  PW1  on  27-02-1991  he  took  milk  to  the  milk
collection centre at Parikongalale Village along with PW5  &  PW6  at  07:30
a.m. At that time A1, A3, A5, A6 held him and assaulted him with  clubs  and
stones and fisted him. Then he has narrated how A1, A2, A3 and A4  assaulted
him. Then the deceased, PW2 & PW3 came to the place of occurrence and  asked
him why they are assaulting PW1.  A5  &  A2  with  chopper  and  club  again
assaulted their father and he fell down and  became  unconscious.  Then  PW6
carried his father to the veranda of the school and  laid  him  down.  After
that again A2, A3, A10 assaulted his brother. At that time  police  came  to
the scene of offence at 10 a.m. and shifted the  deceased  and  PW1  to  the
hospital and then he wrote a complaint and gave it  to  the  police.  Police
recorded the statement and it is attested by him.

(iii) Again at the time  of  inquest  his  statement  was  recorded  by  the
police.  Then  in  the  cross  examination  PW1  has  deposed  altogether  a
different version with regard to the injuries inflicted by  the  accused  on
him and PWs 2 & 3 and added A5 & A10 for the first time.  It  is  stated  by
him that his statement was recorded by police at 12 pm and he has not  given
any complaint in writing. He further states that he has not given the  names
of accused to the police. He denied the  fact  that  father  of  A5  gave  a
complaint to the police against their family at 10  a.m  on  27-02-1991  and
police seized the gun. Then for the first time he stated the  names  of  the
accused who assaulted at the time of inquest.

(iv) A close look at the evidence of PW2 reveals that according to him  they
reached the scene of offence along with deceased at 9 a.m. A1-7 and  A  9-13
were present there by the time they reached  the  place.  His  evidence  was
consistent with regard to injuries inflicted by A2 and A5  but  stated  that
A11 and A12  inflicted  injuries  on  the  deceased  with  stones  which  is
contrary to the medical evidence. He stated that the weapons were  recovered
from the drain. According to PW1 he left the place at 07:30.  As  per  PW2’s
version, PW1 left the place at 06:30 and PW3 gave a different  version  with
regard to reaching the place. According to him they  reached  the  place  at
07:30 or 08:00 a.m and very interestingly he deposed that  his  father  fell
into the drain and later he was lifted  from  there  and  laid  him  in  the
school veranda.

(v) Later police reached the place of occurrence at 09:00  a.m.  and  Police
have arrested PWs 2 & 3 and released them at 05:00 p.m. He has  specifically
stated that police have not seized and sealed the chopper marked  as  MO  4.
According to PW3, when they  reached  the  place  of  occurrence,  only  4-5
persons were there. According to PW2 all accused persons  were  present  and
even with regard to injuries also  he  took  a  contra  stand.  As  per  his
version the whole incident has taken  place  for  15  minutes  i.e.  between
08:30-08:45 a.m. PW4 was not cited as  a  witness  but  was  examined  as  a
witness. Whereas PW5 gave altogether a different version. According to  him,
incident took place at 07:00 a.m.  and  A6  &  A2  were  standing  near  the
culvert. He released PW1 from clutches of the  accused.  According  to  him,
police came at 09:00 a.m. This aspect was  also  not  deposed  by  PW1.  PW6
states that A6 holding PW1’s collar which  was  also  not  deposed  by  PW1.
According to him, he has attended the seizure mahazar but the MOs  were  not
shown to him nor, any seal was affixed on them at the time of seizure.

(vi) The next important evidence is that of Doctor i.e. PW10.  According  to
PW10 the weapons were not sent  to  him  for  opinion.  PW10  in  his  cross
examination has categorically deposed that the injuries 1 & 4  are  possible
if a person were to fall on the curve stone of a drain.

(vii) PWs 13 and 15 are the Head Constables and PW 19 is  the  Inspector  of
Police (I.O.). According to PW13, SI has registered the complaint  at  11:30
a.m. and 2nd FIR was registered altering the Sections  on  06-03-1991.  PW15
deposed that ‘galata’ was informed to them at 09:15 am and they reached  the
scene of offence at 10 a.m. PW1 had not sustained any visible injuries.  PW1
took the SI near to the drain. In the cross  examination  he  said  that  at
08:00 a.m. ‘galata’ took place and he does not know how they  came  to  know
about the information.   When  they  reached  the  scene  of  offence  50-60
persons were present there. SI (PW19) reached the  place  of  occurrence  at
10:15 am and enquired PW1 and others. The evidence of PW19 in the  chief  is
that at 08:00 a.m. he came to know about the incident, went to the scene  of
occurrence along with PWs 15 & 18. Chopper, stones,  club  were  lying  near
the place. By the time they reached the  place  at  08:15  a.m.,  10  to  15
persons were present. He has not made any enquiry and, he has  recorded  Ex.
PI in police station at 10:30 a.m. on the  same  day.  He  returned  to  the
police station at 09:45 a.m. It is  specifically  stated  that  he  has  not
arrested PWs 1, 2 & 3 and has not produced sample seal.

      Having gone through the evidence of the prosecution witnesses and  the
findings recorded by the High Court we feel that the High Court  has  failed
to understand the fact that the guilt  of  the  accused  has  to  be  proved
beyond reasonable doubt and this is a classic case where at each  and  every
stage of the trial, there were lapses on the part  of  investigating  agency
and the evidence of the witnesses is not trustworthy which can  never  be  a
basis for conviction. The basic principle of criminal jurisprudence is  that
the accused is presumed to be innocent until  his  guilt  is  proved  beyond
reasonable doubt.

      Generally in the criminal cases,  discrepancies  in  the  evidence  of
witness is bound to happen because there would be considerable  gap  between
the date of incident and the time of deposing  evidence  before  the  Court,
but if these contradictions create such serious doubt in  the  mind  of  the
Court about the truthfulness of the witnesses and it appears  to  the  Court
that there is clear improvement, then  it  is  not  safe  to  rely  on  such
evidence.

      In the case on hand, the evidence of eyewitnesses is  only  consistent
on the aspect of injuries  inflicted  on  the  deceased  but  on  all  other
factors there are lot of contradictions which go to the root of the  matter.



      Even with regard to seizure of weapons it was observed  by  the  Trial
Court that at one breath it was stated that the MOs  were  seized  from  the
scene of offence and another version was they  were  seized  in  the  police
station and consistently it was stated that the MOs were not sealed and  the
Doctor observed that those were not  sent  to  her  for  opinion.  Then  the
immediate question which comes to the mind of a prudent  person  is  whether
the MOs which are before the Court were the ones seized from  the  scene  of
offence. Hence an adverse inference has  to  be  drawn  on  the  prosecution
case. The witnesses gave different versions on how the weapons were  seized.
Some of them indicated that they were in the drain and some other  witnesses
said that they were lying on the ground at  the  place  of  occurrence.  The
High Court was correct so far as not attributing importance to the  injuries
inflicted by A 11 and 12 as it did not go to the root of the matter.

      In the evidence of the prosecution witnesses in respect of exact  time
when the incident had happened, who were the people present at the scene  of
offence, the time  of  police  reaching  the  scene  of  offence,  place  of
registering the complaint, there were lot of variations.  According  to  PW1
the complaint was recorded at hospital at 12 p.m. whereas the  Investigating
Officer deposed that he registered  the  complaint  at  10:30  a.m.  at  the
police station. PWs  1-3  say  that  they  were  arrested  by  Investigating
Officer but the  I.O.  gave  a  contradictory  statement  that  he  has  not
arrested them. PW1 initially gave a statement before the police  saying  A1,
A5, A3, A4 had not assaulted him. Later he gave  a  contradictory  statement
which is marked as Exhibit D1.

      The eyewitnesses have not mentioned the names of accused 7  to  13  in
any of the FIR  and  subsequent  addition  of  their  names  after  06-03-91
clearly demonstrates that it was an afterthought, only to implicate them.

25.         It is to be noted that all the eyewitnesses were  relatives  and
the prosecution failed to adduce reliable evidence of independent  witnesses
for the incident which took place on a public road in the broad  day  light.
Although there is no absolute rule that the evidence  of  related  witnesses
has to be corroborated by the evidence of independent  witnesses,  it  would
be trite in law to have independent witnesses when the evidence  of  related
eyewitnesses is found to  be  incredible  and  not  trustworthy.  The  minor
variations and contradictions in the evidence of eyewitnesses will not  tilt
the benefit of doubt in favor of the accused but when the contradictions  in
the evidence of prosecution witnesses proves to be fatal to the  prosecution
case then those contradictions go to the root of  the  matter  and  in  such
cases accused gets the benefit of doubt.

      It is the duty  of  the  Court  to  consider  the  trustworthiness  of
evidence on record. As said by Benthem, “witnesses are the eyes and ears  of
justice”. In the  facts  on  hand,  we  feel  that  the  evidence  of  these
witnesses  is  filled  with  discrepancies,  contradictions  and  improbable
versions which draws us to the irresistible conclusion that the evidence  of
these witnesses cannot be a basis to convict the accused.

Latches in Investigation: (i) One of the major lacuna in the  case  is  non-
mentioning of the names of A2 & A5 by PW1 to  the  police  at  the  earliest
point of time. The High Court went wrong in observing  that  this  will  not
amount to latches and it will not go to the root of the  matter.  These  are
the  glaring  defects  which  will  virtually  collapse  the  case  of   the
prosecution. It is no doubt true that the FIR need not  be  an  encyclopedia
and also it need not contain all the details but when the names of A2  &  A5
were not figured in  the  FIR  it  casts  a  doubt  on  the  whole  episode.
According to the eyewitnesses, accused  had  inflicted  major  injuries  and
that was the reason for the death of the deceased. It  is  expected  from  a
prudent man to disclose the names of  accused.  If  the  accused  cannot  be
identified or not known to the PWs then it is not a serious thing  to  dwell
upon but these people are very much known  to  PW1’s  family.  It  therefore
creates a serious doubt in the mind of the Court.

(ii) The other glaring defect in the investigation is when A1 has  sustained
injuries and admittedly a complaint was given by his father, a duty is  cast
upon  the  prosecution  to  explain  the  injuries.  The  doctor  has   also
categorically deposed about the injuries sustained by A1.  These  lapses  on
the part of Investigating Officer assume greater importance and prove to  be
fatal to the  case  of  the  prosecution.  When  the  Investigating  Officer
deposed before the Court  that  the  complaint  given  by  A5’s  father  was
investigated and he filed ‘B form’ and the case was closed, not marking  the
document is fatal to the case of prosecution. Investigating Officer  further
suppressed the fact that there was a direct evidence to seize the  gun  used
by the deceased and register a complaint  against  the  deceased  under  the
relevant provisions of the Arms Act which is evident  from  the  endorsement
made on Exhibit P22.

            (iv) The Investigating Officer himself deposed that he  had  not
seen the MOs and as per the punch  witnesses  also  they  were  not  seized.
 The Doctor (PW10) deposed that those articles were not  placed  before  her
and no opinion was sought.

             (v)  PW2  was  also  an  injured  witness.  According  to   the
prosecution he was injured on 27-02-1991. But he went to the hospital on 08-
03-91 and the reasons for delay were left unexplained.

      It is settled law that mere  latches  on  the  part  of  Investigating
Officer itself cannot be a ground for acquitting the  accused.  If  that  is
the basis, then every criminal case will depend upon the will and design  of
the Investigating Officer. The Courts have to independently  deal  with  the
case and should arrive at a just conclusion beyond reasonable  doubt  basing
on the evidence on record.

Medical Evidence:  When we look at the medical evidence, the  Doctor  (PW10)
has categorically stated that the weapons were  not  sent  to  her.  In  the
chief examination, it was stated that the injuries 1 & 4 on the body of  the
deceased are possible with chopper and club. But in  the  cross  examination
it was deposed that even if a person falls on a sharp object these  injuries
could happen. According to PW3, the deceased fell into the drain.

As per the evidence of prosecution witnesses, accused  by  using  the  sharp
edge of the weapon assaulted on the right  side  of  the  forehead  but  the
Doctor’s evidence in this regard is that  the  deceased  has  not  sustained
incised wound on the forehead. PW10 further  stated  that  if  a  person  is
assaulted with an object like MO4 it would result  in  fracture  of  frontal
bone.

      (ii) The other ground is, when the  father  of  A5  gave  a  complaint
against the deceased’s family as the police filed  ‘B  form’  the  same  was
closed and not filed before the Court. Apart from  that,  the  direction  of
the Court to seize the gun of  the  deceased  and  file  a  case  under  the
relevant provisions of the Arms Act was not brought to  the  notice  of  the
Court. Non explanation of injuries on A5 is another major defect.

      Once there is a  clear  contradiction  between  the  medical  and  the
ocular evidence coupled with severe contradictions  in  the  oral  evidence,
clear latches in investigation, then the benefit of doubt has to go  to  the
accused.

      Going by the material on record, we disagree with the finding  of  the
High Court that  the  ocular  evidence  and  the  medical  evidence  are  in
conformity with the case of prosecution to convict  the  accused.  The  High
Court has brushed aside the vital defects involved in the  prosecution  case
and in a very unconventional way convicted the accused.

      The Court should  always  make  an  endeavor  to  find  the  truth.  A
criminal offence is not only an  offence  against  an  individual  but  also
against the society.  There would be failure of justice if innocent  man  is
punished. The  Court  should  be  able  to  perceive  both  sides  i.e.  the
prosecution as well as  the  defence  and  in  our  considered  opinion  the
judgment of the High Court suffers from several defects as discussed in  the
preceding paragraphs.

      Hence we deem it appropriate to set aside the  judgment  of  the  High
Court and re-affirm the order of acquittal passed by the  Trial  Court.  The
accused shall be set at liberty provided they are not required in any  other
case. Accordingly the appeals are allowed.



                                         ..................................J
                                                              (N. V. Ramana)



                                          .................................J
                                                          (Prafulla C. Pant)


New Delhi
Dated:  March 28, 2017

whether sec.15 [2] of Hindu Succession Act applies ?= Perumal Naidu bequeathed his properties to all his heirs including his two daughters by conferring on them “absolute interest” and not the “life interest” in the properties. A fortiori, Alamelu Ammal and the defendant, therefore, acquired absolute ownership rights in the suit properties on the strength of the Will. They, therefore, rightly got their names recorded in the Revenue Records in 1957 itself and continued to exercise their ownership rights till 1987 without any interference from anyone including plaintiffs or/and their predecessor-in-title. One cannot dispute a legal proposition that once a heir becomes the absolute owner of the property by virtue of a Will then as a necessary consequence, he/she is entitled to alienate such property by any mode permissible in law to anyone. Alamelu Ammal did it when she alienated her share by executing a Will in favour of the defendant(her sister). It was legally permissible. 42) If however, Courts had held in the plaintiffs’ favour that the heir got only “life interest” in the property through Will of Perumal Naidu then perhaps on the death of such heir, her share may have devolved on the surviving heirs (reversioners) of father (Perumal Naidu) in terms of Section 15(2) of the Act subject to proving other conditions. Such was, however, not the case. we did not consider it necessary to examine the meaning of the words “any property inherited by a female Hindu from her father or mother” occurring in Section 15(2)(a) of the Act for deciding a question as to whether such expression would include “a property received by a female Hindu by Will from her father or mother” or it would include only those properties which are devolved on female by natural succession on the death of her father or mother. In this case, this question need not be decided once we have held that Section 15(2) of the Act has no application to the facts of this case. 45) As a consequence, the appeal succeeds and is allowed. The impugned judgment is set aside and that of the trial Court is restored resulting in dismissal of the suit filed by the plaintiffs.

REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL No. 4490 OF 2017
                   (ARISING OUT OF SLP (C) No.22148/2013)

Karunanidhi                         ….Appellant(s)

                             VERSUS

Seetharama Naidu & Ors.                …Respondent(s)

                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    Leave granted.
2)    This appeal is filed by  the  legal  representative  of  the  original
defendant against the final judgment and order dated  26.07.2012  passed  by
the High Court of Judicature at Madras in S.A. No. 873 of 2003  whereby  the
High Court allowed the appeal filed by the respondents  (plaintiffs)  herein
in part and set aside the judgment and decree passed by the Trial  Court  in
respect of ‘A’ Schedule properties and modified the judgment and  decree  to
the effect that each respondent(plaintiff) was held entitled to 1/3rd  share
in respect of ‘A’ Schedule property except Item No.2  of  ‘A’  Schedule  and
for consequential relief regarding mesne profits in respect of  2/3rd  share
of the respondents(plaintiffs) in  ‘A’  Schedule  property  and  accordingly
confirmed the judgment and decree passed by the Trial Court  in  respect  of
‘B’ Schedule property.
3)    We herein set out the facts,  in  detail,  to  appreciate  the  issues
involved in this appeal.
4)    The dispute in this appeal is between the heirs of one Perumal  Naidu,
who was the original ancestor in the family.  The  legal  heirs  of  Perumal
Naidu represent three branches of the family.
5)    The questions, which arise for consideration in this appeal, are  what
is the extent of share of each heir of  Perumal  Naidu  in  his  properties;
secondly, how the devolution of each heir's  share  would  take  place;  and
thirdly, on the death of any  heir,  how  his/her  share  would  devolve  on
his/her legal representative in law.  These are  broadly  the  issues  which
arise in this appeal.
6)    In order to properly answer the aforementioned  questions,  which  lie
in a narrow compass and based on  more  or  less  undisputed  facts,  it  is
necessary to set out the family genealogy tree.
                              GENEALOGICAL TREE

                     Late Perummal Naidu (died in 1924)



Late        Subbammal                      Late        Lakshmi         Ammal
Late Pappu Ammal
(1st          Wife)                                     (2nd           Wife)
(3rd Wife)


      Late Muthuammal
         (daughter)
           Late Alamelu                Ramanujatha       No Child
                              Ammal             Ammal (Defendant)
      (daughter) (daughter)
      (Died in 1987)   (died in 2004)



            Late Andal                 Late Vijayalakshmi
            Ammal                 (daughter)
           (daughter)        (died as minor)





Seetharama Naidu             Late Sagunthala
 (son)      (daughter)
(Plaintiff No.1)       (Plaintiff No.2)

7)    As would be clear from the family tree, the original ancestor  of  the
family was one male Hindu - Perumal  Naidu.  He  owned  extensive  immovable
properties situated in Thenkarai Esanur,  Thiruvaikur  Vattam,  Nagapattinam
Taluk in State of Tamil Nadu. The details of the properties held by  Perumal
Naidu are set out in the plaint  and  would  hereafter  be  referred  to  as
"suit properties".
8)    Perumal had three wives-Subbammal, Lakshmi Ammal and Pappu Ammal.  Out
of the first marriage with Subbammal, one daughter  was  born  -  Muthammal.
Out  of  the  wedlock  of   Muthammal,   two   daughters-Andal   Ammal   and
Vijayalakshmi were born. Vijayalakshmi, however, died during  her  minority.
Out of the wedlock of  Andal  Ammal,  one  son-Seetharama  Naidu  (plaintiff
No.1) and a daughter- Sagunthala (plaintiff No. 2) were born.
9)    Out of Perumal  Naidu’s  second  marriage  with   Lakshmi  Ammal,  two
daughters were born-Alamelu Ammal and Ramanujatha  Ammal  (defendant).  Both
did not have any issue.  Alamelu Ammal  died  in  1987  whereas  Ramanujatha
Ammal died in 2004. So far  as  Perumal  Naidu’s  3rd  wife-Pappu  Ammal  is
concerned, she died issueless.
10)   On 27.12.1923, Perumal  Naidu  executed  a  Will  and  bequeathed  his
immovable and movable properties including the suit properties to his  heirs
such as, his 3rd wife, two daughters from second  wife,  his  granddaughters
from first wife and  his  son-in-law.  The  Will  specified  the  extent  of
properties bequeathed to each heir named above. Soon after the execution  of
the Will, Perumal Naidu died in the 1924.
11)   The execution of the Will by Perumal Naidu  gave  rise  to  litigation
amongst his heirs. One suit being Civil Suit No.13/1924  was  filed  by  his
two daughters-Alamelu Ammal and Ramanujatha Ammal. Since both the  daughters
were minor, therefore, the suit was filed through  their  local  guardian  -
one Gopalsami Naidu.
12)   In the suit, the challenge was made to the legality  and  validity  of
the Will executed by  Perumal  Naidu  including  the  extent  of  properties
bequeathed to the  plaintiffs.   According  to  the  plaintiffs,  they  were
entitled to receive more shares in the properties left  by  their  father  -
Late Perumal Naidu than what was bequeathed to them in  the  Will.  In  this
suit, Andal Ammal-grand-daughter of late Perumal Naidu, who  is  the  mother
of the plaintiffs of this litigation was one of the defendants.
13)   Vide judgment/decree dated 15.09.1925, the Trial Court  dismissed  the
suit. It was, however, held that the  Will  executed  by  Perumal  Naidu  in
favour of  his  several  heirs  was  a  valid  Will.  The  plaintiffs,  felt
aggrieved,  filed  appeal  being  First  Appeal  No.  284/1925  but  it  was
dismissed.  The  plaintiffs  then  filed  second  appeal,  which  was   also
dismissed. This litigation ended finally as no further appeal was  filed  by
the plaintiffs after the decision of the High  Court  in  S.A.  No.  234  of
1925.
14)   On 29.07.1957, two daughters of Perumal Naidu from  his  second  wife-
Alamelu Ammal and Ramanujatha  Ammal  effected  partition  between  them  in
relation to the properties which they had received by Will from  their  late
father.   Both also got their name mutated in the revenue records  as  owner
in respect of their respective shares.
15)   On 01.10.1987, Alamelu Ammal-daughter  of  Perumal  Naidu  executed  a
Will of her  property  and  bequeathed  its  some  portion  to  her  sister-
Ramanujatha Ammal and the remaining to the appellant herein. Alamelu  Ammal,
however, died soon after execution of the Will on 29.10.1987.
16)    Ramanujatha  Ammal-another  daughter  also  executed  a  Will   dated
25.11.1987 of her share, which consisted of some properties received by  her
from her father and remaining from her sister -Alamelu  Ammal  by  Will  .By
her Will, she bequeathed her properties to the appellant herein and others.
17)   It is with the aforementioned  factual  background,  second  round  of
litigation began between the surviving heirs of Late Perumal  Naidu  out  of
which the present appeal arises.
18)   The second round of litigation with which we are  concerned  here  was
initiated by two heirs, i.e., great-grandson and the great-granddaughter  of
late Perumal Naidu- Seetharama Naidu and  Sagunthala-son/daughter  of  Andal
Ammal, who is the daughter of Muthammal, who, in turn, is  the  daughter  of
Perumal Naidu from his first wife Subbammal.
19)   On 15.12.1987, Seetharama Naidu and Sagunthala served a  legal  notice
to Ramanujatha Ammal. Though in the notice, no  legal  basis  was  mentioned
and nor any specific share in the suit properties was demanded and  nor  any
factual foundation was laid as to how and on  what  basis,  the  notice  was
being sent demanding share in the  properties  held  by  Alamelu  Ammal  and
Ramanujatha Ammal except stating therein that they were  entitled  to  claim
right, title, interest and share in the properties received  by  Ramanujatha
Ammal from her  late  father  and  sister-Alamelu  Ammal.  In  other  words,
according to them, the properties  received  and  possessed  by  Ramanujatha
Ammal had devolved on them by succession on the death of  Alamelu  Ammal  in
1987 but did not devolve  on  Ramanujatha  Ammal  because  they  were  heirs
through father’s side.  Ramanujatha Ammal, on receipt of notice, denied  the
claim by sending her reply on 23.12.1987.
20)   Seetharama Naidu and Sagunthala then filed a  suit  being  Civil  Suit
No. 26/1988 on 23.03.1988 against Ramanujatha Ammal.  The  suit  was  for  a
declaration of their title and  for  possession  in  relation  to  the  suit
properties. In substance, the plaintiffs’ case was that  the  defendant  and
her late sister-Alamelu Ammal had  only  life  interest  in  the  properties
which she had received from their late father  Perumal  Naidu  through  Will
and hence on the death of Alamelu Ammal in 1987, the properties held by  her
devolved on the plaintiffs as reversioners  by  succession  through  Perumal
Naidu's first wife as father’s heirs. It was averred that  disposition  made
by Alamelu Ammal of her share by Will executed  in  favour  of  her  sister-
Ramanujatha Ammal was of no avail because Alamelu  Ammal  herself  had  life
interest in the properties and, therefore,  such  properties  could  not  be
bequeathed by her through Will to the defendant.  It was  averred  that  her
property could not be devolved on  the  defendant  also  by  succession  but
could only be devolved  in  favour  of  the  plaintiffs  as  father’s  heirs
(reversioners).
21)   The defendant filed her written statement and denied  the  plaintiffs’
claim. According to her, the Will executed by  Perumal  Naidu  (her  father)
conferred “absolute interest” on the defendant and her sister-Alamelu  Ammal
 in the suit properties and not the “life  interest”  as  contended  by  the
plaintiffs. It was also contended that since the defendant  and  her  sister
Alamelu Ammal,  got “absolute interest” in  the  properties,  Alamelu  Ammal
was, therefore, competent to transfer her share in any manner to anyone  and
which she did by executing the Will  in  defendant’s  favour.  It  was  also
contended that on the death of Alamelu Ammal in  1987,  her  share  did  not
devolve on the plaintiffs as heirs of Perumal Naidu  but  it  devolved  upon
the defendant by virtue of two Wills-one  executed  by  her  father  Perumal
Naidu and the other executed by her sister-Alamelu Ammal.
22)   The Trial Court, vide judgment/decree dated 16.06.1994  dismissed  the
suit. It was held that Alamelu Ammal and defendant had  “absolute  interest”
in the properties received by them by Will from Perumal Naidu. It  was  also
held that the plaintiffs failed to prove that the defendant  or/and  Alamelu
Ammal had only life interest in the properties. It was also held that  since
the plaintiffs’ mother Andal Ammal (who was grand-daughter of  Late  Perumal
Naidu) also got one share  along  with  the  defendant  and  others  in  the
properties through same  Will  of  Perumal  Naidu  and  she  having  enjoyed
“absolute interest”  of  her  share  like  other  heirs,  had  no  right  to
challenge the Will nor the plaintiffs, who are her  son  and  daughter,  had
any right to challenge the Will.  It was held  that  it  was  more  so  when
Andal Ammal was party to the earlier  civil  suit,  she  was  bound  by  the
findings recorded in the said suit.
23)   The plaintiffs, felt  aggrieved,  filed  first  appeal  being  A.S.No.
124/1994 before the  District  Judge.  By  judgment  dated  14.08.1995,  the
District Judge dismissed the appeal and affirmed the judgment/decree of  the
Trial Court.
24)   The plaintiffs, felt  aggrieved,  filed  Second  Appeal  No.  873/2003
before the High Court.  During  the  pendency  of  the  second  appeal,  the
defendant passed away on 29.07.2004.  The plaintiffs filed C.M.P.  No.  8691
of 2006 before the High Court to implead the appellant herein as  respondent
in the second appeal as legal representatives  of  the  defendant.   By  its
order dated 25.04.2012, the High  Court  brought  the  appellant  herein  as
respondent to represent the estate of the respondent(defendant).
25)    By  impugned   judgment,   the   High   Court   interfered   in   the
judgment/decree of the two courts below, allowed  the  appeal  in  part  and
while setting aside the judgment, decreed the suit in part. The High  Court,
however, upheld the concurrent findings of the two  Courts  below  and  held
that the Will executed by Perumal Naidu  in  favour  of  his  two  daughters
conferred "absolute interest" in the properties and not the “life  interest"
as claimed by the  plaintiffs.  The  High  Court  then  proceeded  to  place
reliance on Section 15 (2) (a) read with Section 8 and Schedule appended  to
the Hindu Succession Act, 1956 (hereinafter referred to as  “the  Act”)  and
held that since the plaintiffs  are  son  and  daughter  of  a  pre-deceased
daughter of a pre-deceased daughter and are class I  heir  as  specified  in
the Schedule and hence by virtue of Section 15(2)(a)  which  has  overriding
effect on those categories of the heirs specified in  sub-section(1),  would
be entitled to  claim  1/3rd   share  in  the  suit  properties  along  with
defendant, i.e., plaintiff No. 1 would be entitled to get  1/3rd,  plaintiff
No. 2 would be entitled to get 1/3rd,  i.e.,  both  would  get  2/3rd  share
whereas the defendant would be entitled to get 1/3rd   in  relation  to  the
properties specified in schedule ‘A’ ( except one item).
26)   It is against this judgment of the High Court, the defendant has  felt
aggrieved and  filed this appeal by way of special leave before  this  Court
questioning its legality and correctness.
27)   Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we are inclined to allow the appeal  and  while  setting
aside  the  impugned  judgment,  restore  that  of  the  Trial   Court/First
appellate Court and, in consequence, dismiss the suit.
28)   Section 15 and Schedule appended to the Act are relevant for  deciding
the appeal. It read as under:
“15. General rules of succession in  the  case  of  female  Hindus  (1)  The
property of a female Hindu dying intestate shall devolve  according  to  the
rules set out in section 16-

(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1)-
(a) any property inherited by a female  Hindu  from  her  father  or  mother
shall devolve, in the absence  of  any  son  or  daughter  of  the  deceased
(including the children of any pre-deceased son or daughter)  not  upon  the
other heirs referred to in sub-section (1) in the order  specified  therein,
but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband  or  from  her
father-in-law shall devolve, in the absence of any son or  daughter  of  the
deceased (including the children of any predeceased  son  or  daughter)  not
upon the other heirs referred to in sub-section (1) in the  order  specified
therein, but upon the heirs of the husband.”


                                “THE SCHEDULE
                                 [Section 8]
                        HEIRS IN CLASS I AND CLASS II

                                   CLASS I
 Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-
deceased son; son of a predeceased  daughter;  daughter  of  a  pre-deceased
daughter; widow of a pre-deceased son; son of a predeceased son  of  a  pre-
deceased son; daughter of a pre-deceased son of a  pre-deceased  son;  widow
of a pre-deceased  son  of  a  pre-deceased  son;  [son  of  a  pre-deceased
daughter of a pre-deceased daughter; daughter of a pre-deceased daughter  of
a pre-deceased daughter; daughter of a pre-deceased son  of  a  pre-deceased
daughter; daughter of a pre-deceased daughter of a pre-deceased son.]*

*added by amendment by Act 39/2005, section 7(w.e.f.9.9.2005) “

29)   Section 15 of the Act applies  to  the  case  of  female  Hindus.   It
specifies the general rules of succession and  provides  the  categories  of
heirs on whom the property of a female Hindu would  devolve  on  her  death.
Sub-section(1) sets out four categories of heirs specified  in  clauses  (a)
to (e) on whom her property would devolve  as  per  the  rules  set  out  in
Section 16.  Sub-section(2) is given an overriding effect on the  categories
of persons specified  in  sub-section(1).   So  far  as  clause(a)  of  sub-
section(2) is concerned, it  provides  that  any  property  inherited  by  a
female Hindu from her father or mother shall devolve upon the heirs  of  the
father, if female does not have her son, daughter including the children  of
any pre-deceased son or daughter but would not devolve upon  the  categories
of heirs specified in sub-section(1).
30)   So far as Schedule in relation to Class I heirs is concerned,  it  was
amended  by  the  Parliament  by  Act  39/2005  w.e.f.  9.9.2005.   By  this
amendment, four new categories of heirs, namely, (1)son  of  a  pre-deceased
daughter of a pre-deceased daughter; (2)daughter of a pre-deceased  daughter
of a pre-deceased daughter; (3) daughter of a pre-deceased  son  of  a  pre-
deceased daughter; and (4) daughter of a pre-deceased  daughter  of  a  pre-
deceased son, were included in the categories of Class I heirs.

31)   Now reverting to the facts of this case, in  our  considered  opinion,
the High Court rightly upheld all the material findings of  the  two  courts
below but committed one legal error  when  it  placed  reliance  on  Section
15(2)(a) read with Schedule appended to the Act for granting relief  to  the
plaintiffs and by recognizing their right in  the  suit  properties  against
the defendant.  This finding of the High Court is bad  in  law  for  various
reasons mentioned hereinafter.
32)   In the first place, such was not the case set up by the plaintiffs  in
the Trial Court or the first appellate Court or even before the High  Court.
Second, no substantial question of law was framed by the High Court  on  the
applicability of Section 15(2) of the Act and third, in the absence  of  any
pleading, issue and  finding  recorded  by  the  two  courts  below  on  the
applicability  of  Section15(2)  of  the  Act,  the  High   Court   had   no
jurisdiction to examine the case of its own for the  first  time  in  second
appeal on such issue.
33)   It is a settled principle of law that the High Court has  jurisdiction
to hear the second appeal only on the substantial  question  of  law  framed
under Section 100(5) of the
Code of Civil Procedure, 1908  (hereinafter  referred  to  as  “the  Code”).
Equally well settled principle of  law  is  that  the  High  Court   has  no
jurisdiction to decide the appeal on the question which  is  not  framed  as
required under Section 100(4) of the Code.
34)   It is clear from the record of  the  case  that  the  High  Court  had
framed following three substantial questions of law, which did  not  include
any question regarding the applicability of Section 15(2) of the Act:
“1. Whether the lower appellate Court erred in law in  not  drawing  adverse
inference against the defendant for non-production of the  original  of  the
Will dated 23.12.1923 executed by Perumal Naidu when the same  was  produced
by them in the earlier suit?

2.    Whether the lower  appellate  Court  erred  in  law  in  receiving  in
evidence Exs. B3  and  B4  in  the  absence  of  any  explanation  for  non-
production of the original Will and without making grounds for reception  of
second evidence?

3.    Whether  the  lower  appellate  Court  erred   in   not   taking   the
circumstances prevailing in 1923 at the time of execution of the  Will  that
female heirs were given only life estates and hence the female  lagatees  of
Perumal Naidu as per Will only got life estate and not absolute interest?”

35)   The High Court, in our considered opinion, was, therefore,  not  right
in suo moto applying the provisions of Section 15(2)(a) of the  Act  without
even framing any additional substantial question of law by  taking  recourse
to Section 100(5) of the Code.  If it was of the view that  such  issue  was
involved in the case then it was mandatory for  the  High  Court    to  have
first formulated the specific  question  on  the  applicability  of  Section
15(2)(a) of the Act either at the time of admission of the appeal or at  the
time of final hearing of the appeal by assigning reasons  for  framing  such
question.  This was not done.  It was, in our view, a  jurisdictional  error
committed by the High Court while deciding the second appeal.
36)   That apart and even otherwise, in our  considered  opinion,  the  High
Court was not right in placing  reliance  on  Section  15  of  the  Act  for
deciding the rights of the parties.  It is for the simple  reason  that  the
category of heirs to which the plaintiffs had belonged, namely,  "son  of  a
pre-deceased daughter of a pre-deceased daughter  and  daughter  of  a  pre-
deceased daughter of a pre-deceased daughter”  was  added  in  the  Schedule
(class I) only with effect from 9.9.2005 by  amendment  by  Act  No.  39  of
2005.
37)   The plaintiffs, therefore, were  not  entitled  in  law  to  take  the
benefit of the aforesaid amendment because even  according  to  them,  their
right to claim the share, if any, in the suit  properties  held  by  Alamelu
Ammal accrued on the death of Alamelu Ammal in 1987  and  they  filed  civil
suit in the year 1988. In other words, a right, if any,  to  claim  interest
by succession in the properties  of  Alamelu  Ammal  opened  in  plaintiffs’
favour as an heir from father's side in 1987 when  Alamelu  Ammal  died.  In
this view of the matter, the plaintiffs’ rights as an heir to  claim  shares
in the suit properties had to be worked out on the basis of law in force  on
the date (1987), i.e., when succession  opened  for  them  to  enforce  such
right and when they filed the suit (1988).
38)   As mentioned above, the category of an heir to  which  the  plaintiffs
belonged was not included in class I list in the Schedule  in  1987  but  it
was so included for the first time on 09.09.2005 by  Act  39/2005.  In  this
view of the  matter,  the  plaintiffs  had  no  right  on  the  strength  of
succession/devolution to claim any interest in  the  properties  of  Alamelu
Ammal in 1987 as father’s heir. A fortari – the devolution  of  interest  in
suit properties could not take place in their favour by  virtue  of  Section
15(2)(a) of the Act.  Since the amendment in the Schedule  was  prospective,
it had no application to the case in hand with its retrospective  effect  so
as to create any right in plaintiffs’ favour in 1987.
39)   However, if Alamelu Ammal had died after 09.09.2005 then perhaps,  the
plaintiffs could have claimed some interest in the suit  properties  subject
to however their proving other conditions.  The reason  being  the  category
of heirs to which they belonged was by that time included in  the  Schedule.
Such was, however, not the case.
40)   Apart from what we have held supra, the plaintiffs  had  otherwise  no
case on merits on yet another ground. It is not in dispute that  the  Courts
below concurrently held  and,  in  our  view,  rightly  that  Perumal  Naidu
bequeathed his properties to all his heirs including his  two  daughters  by
conferring on them “absolute interest” and not the “life  interest”  in  the
properties.  A  fortiori,  Alamelu  Ammal  and  the  defendant,   therefore,
acquired absolute ownership rights in the suit properties  on  the  strength
of the Will.  They, therefore, rightly  got  their  names  recorded  in  the
Revenue Records in 1957 itself and continued  to  exercise  their  ownership
rights till 1987 without any interference from anyone  including  plaintiffs
or/and their predecessor-in-title.
41)   One cannot dispute a legal proposition that once a  heir  becomes  the
absolute owner of the property by virtue of  a  Will  then  as  a  necessary
consequence, he/she is entitled  to  alienate  such  property  by  any  mode
permissible in law to anyone.  Alamelu Ammal did it when she  alienated  her
share by executing a Will in favour of the  defendant(her  sister).  It  was
legally permissible.
42)   If however, Courts had held in the plaintiffs’ favour  that  the  heir
got only “life interest” in the property through Will of Perumal Naidu  then
perhaps on the death of such heir,  her  share  may  have  devolved  on  the
surviving heirs  (reversioners)  of  father  (Perumal  Naidu)  in  terms  of
Section 15(2) of the Act subject to proving  other  conditions.   Such  was,
however, not the case.
43)   In the light  of  foregoing  discussion,  we  are  of  the  considered
opinion that though the High Court was right in upholding all  the  findings
of fact of the two courts below but was not right in  relying  upon  Section
15(2)(a) of the Act for allowing the plaintiffs’ second appeal  by  treating
them to be Class I heirs from father’s side and, in  consequence,  was  also
not right in decreeing the  plaintiffs’  suit  in  part  by  granting  1/3rd
share to each plaintiff in the suit property. This finding, as  held  above,
is legally  unsustainable  and  hence  deserves  to  be  set  aside.  It  is
accordingly set aside.
44)   Here we consider it apposite to mention that we did  not  consider  it
necessary to examine the meaning of the words “any property inherited  by  a
female Hindu from her father or mother” occurring  in  Section  15(2)(a)  of
the Act for deciding a question as to whether such expression would  include
“a property received by a female Hindu by Will from her  father  or  mother”
or it would include only those properties which are devolved  on  female  by
natural succession on the death of her father  or  mother.   In  this  case,
this question need not be decided once we have held that  Section  15(2)  of
the Act has no application to the facts of this case.
45)   As a consequence, the appeal succeeds and  is  allowed.  The  impugned
judgment is set aside and that of the trial Court is restored  resulting  in
dismissal of the suit filed by the plaintiffs.

                       ………...................................J.
                             [R.K. AGRAWAL]


 ...……..................................J.
                             [ABHAY MANOHAR SAPRE]

      New Delhi;
      March 27, 2017


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