Input:
N: Criminal Appeal No. 687 of 1980.
Appeal by Special Leave from the Judgment and Order dated 18 4 1980 of the Punjab and Haryana High Court in Crl.
No. 26 M/1980.
Mrs. Urmila Sirur for the Appellant.
Mrs. Shobha Dixit and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
On August 13, 1979, Gurnam Singh a resident of Chandigarh submitted a complaint to the Judicial Magistrate 1st Class Chandigarh, alleging that the appellant H. section Bains accompanied by two persons had come to his house in a car on the morning of August 11, 1979, at about 8 a.m., tress passed into the house and threatened to kill him and his natural son if he did not take away his natural son Aman Deep Singh from the house of his sister Bakshish Kaur, who had taken the boy in adoption as she was issueless.
Bakshish Kaur was the widow of the brother of the appellant and the adoption made by Bakshish Kaur was not to the liking of the appellant.
It was alleged in the complaint that the appellant was armed with a revolver which he pointed at the complainant.
The complainant raised a hue and cry.
The accused and his companions fled away in their car.
As August 11, 1979 and August 12, 1979 were holidays, he was able to file the complaint only on 13th August, 1979.
The learned Magistrate to whom the complaint was submitted ordered an investigation by the police under Sec.
156(3) of the Code of Criminal Procedure.
The police after completing the investigation, 937 submitted a report to the Magistrate under Sec.
173 of the Code of Criminal Procedure stating that the case against the appellant was not true and that it might be dropped.
The police arrived at the conclusion that the case against the appellant was not true as their investigation revealed, according to them, that the appellant was at Amritsar with Shri Jai Singh, District Magistrate of Amritsar at 9 a.m. on August 11, 1979 and it was, therefore, impossible for him to have been at Chandigarh at 8 a.m. on August 11, 1979.
The learned Magistrate after perusing the report submitted by the police disagreed with the conclusion of police, took cognizance of the case under Sections 448, 451 and 506 of the Indian Penal Code and directed the issue of process to the appellant.
Aggrieved by the issue of process, the appellant filed Criminal Miscellaneous Case No. 26 M of 1980, in the High Court of Punjab and Haryana to quash the proceedings before the Magistrate.
The application was dismissed by the High Court and the appellant filed a petition for the grant of special leave to appeal against the order of the High Court.
We granted Special Leave and straightaway heard the appeal with the consent of the parties.
Shri Kapil Sibal urged that the Magistrate had issued process to the accused without recording the statement, on oath, of the complainant and the witnesses under Sec.
200 Criminal Procedure Code and therefore, he must be taken to have taken cognizance of the case under Sec.
190(1)(b), as if upon a police report.
Shri Sibal submitted that the Magistrate was not competent to take cognizance of the case as if it was upon a police report as the report under Sec.
173 Criminal Procedure Code submitted to him disclosed that no offence had been committed by the accused.
According to Shri Sibal, in the circumstances of the case, the Magistrate, on receipt of the report under Sec.
173 Criminal Procedure Code to the effect that the case against the accused was not proved, had only two options before him.
He could either order a further investigation or he could take cognizance of the case as if upon a complaint, record the statements of the complainant and witnesses under Sec.
200 Criminal Procedure Code and then proceed to issue process if he was satisfied that process ought to be issued.
In any case Shri Sibal submitted that the order of the Ist Class Magistrate taking cognizance of the case was so unjudicial that it ought to be struck down.
Shri Sibal invited our attention to two decisions of this Court: Abhinandan Jha & Ors.
vs Dinesh Mishra; and Tula Ram & Ors.
vs Kishore Singh.
938 Chapter XII of the Code of Criminal Procedure 1973 deals with information to the Police, and their powers to investigate.
156 (1) vests in an officer incharge of a Police Station the power to investigate any cognizable case, without the order of a Magistrate.
156(3) authorises a Magistrate, empowered under Sec. 190, to order an investigation as mentioned in Sec.
156(1).
The provisions from Sec.
157 onwards are concerned with the power and procedure for investigation.
169 prescribes that if upon an investigation it appears to the officer incharge of the Police Station that there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond (with or without sureties) to appear if and when required, before a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial.
170 prescribes that if upon investigation it appears to the officer incharge of the Police Station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of an offence on a police report and to try the accused or commit him for trial.
If the offence is bailable the officer shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed.
173(1) casts a duty upon the police officer to complete the investigation without unnecessary delay.
173(2) prescribes that as soon as the investigation is completed the officer incharge of the police station shall forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the prescribed form stating the various particulars mentioned in that sub section.
190(1) which occurs in Chap.
XIV (Conditions requisite for initiation of proceedings) may be extracted at this stage.
It is as follows: "190(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub section (2), may take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; 939 (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed".
What has been extracted is Sec. 190 as it stands at present.
190 of the previous Code was slightly different.
Clause (1)(b) read as "upon a report in writing of such facts made by any police officer".
In clause (1)(c) after the word 'knowledge ', the words 'or suspicion ' occurred, and these words have now been omitted.
Chapter XV (Sections 200 to 203) of the Code deals with "complaints to Magistrates".
A Magistrate taking cognizance of an offence on complaint is required by Sec. 200 to examine the complainant and the witnesses present, if any.
Sec. 202 provides that a Magistrate taking cognizance of a case upon complaint, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
203 empowers the Magistrate to dismiss the complaint, if, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the enquiry or investigation (if any) under Sec. 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding.
Chapter XVI deals with "commencement of proceedings before Magistrate" and Sec. 204 enables a Magistrate to issue summons or a warrant as the case may be to secure the attendance of the accused if in the opinion of the Magistrate taking cognizance of the offence there is sufficient ground for proceeding.
It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him.
He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Sec. 200.
Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Sec.
If in his opinion there is sufficient ground for proceeding he may issue process under Sec. 204.
However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding.
He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding.
On the other hand, in the first instance, on receipt 940 of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Sec. 156(3).
The police will then investigate and submit a report under Sec. 173(1).
On receiving the police report the Magistrate may take cognizance of the offence under Sec.
190(1)(b) and straightaway issue process.
This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not.
The Police report under Sec.
173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom.
The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further.
The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Sec.
200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process.
The mere fact that he had earlier ordered an investigation under Sec. 156(3) and received a report under Sec.
173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204.
Thus, a Magistrate who on receipt of a complaint, orders an investigation under Sec.
156(3) and receives a police report under Sec. 173(1), may, thereafter, do one of three things: (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Sec.
190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report: (3) he may take cognizance of the offence under Sec.
190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Sec. 200 If he adopts the third alternative, he may hold or direct an inquiry under Sec. 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue process, as the case may be.
In Abhinandan Jha & Ors.
vs Dinesh Mishra, (supra) the question arose whether a Magistrate to whom a report under Sec.
173(1) had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge sheet, on his disagreeing with the report submitted by the Police.
This Court held that the Magistrate had no jurisdiction to direct the police to submit a charge sheet.
It was open to the Magistrate to agree or 941 disagree with the police report.
If he agreed with the report that there was no case made out for issuing process to the accused, he might accept the report and close the proceedings.
If he came to the conclusion that further investigation was necessary he might make an order to that effect under Sec.
156(3).
If ultimately the Magistrate was of the opinion that the facts set out in the police report constituted an offence he could take cognizance of the offence, notwithstanding the contrary opinion of the police expressed in the report.
While expressing the opinion that the Magistrate could take cognizance of the offence notwithstanding the contrary opinion of the police the Court observed that the Magistrate could take cognizance under Sec.
190(1)(c) '.
We do not have any doubt that the reference to 'Sec.
190(1)(c) ' was a mistake for 'Sec.
190(1)(b) '.
That appears to be obvious to us.
But Shri Kapil Sibal urged that the reference was indeed to Sec.
190(1)(c) since at that time Sec.
190(1)(c) included the words 'or suspicion ' and the Court had apparently taken the view that the Magistrate could take cognizance of the offence not under Sec.
190(1) (b) as if on a police report but under Sec.
190(1)(c) as if on suspicion '.
We do not agree with this submission.
190(1)(c) was never intended to apply to cases where there was a police report under Sec. 173(1).
We find it impossible to say that a Magistrate who takes cognizance of an offence on the basis of the facts disclosed in a police report must be said to have taken cognizance of the offence on suspicion and not upon a police report merely because the Magistrate and the Police arrived at different conclusions from the facts.
The Magistrate is not bound by the conclusions arrived at by the police even as he is not bound by the conclusions arrived at by the complainant in a complaint.
If a complainant states the relevant facts in his complaint and alleges that the accused is guilty of an offence under Sec.
307 Indian Penal Code the Magistrate is not bound by the conclusion of the complainant.
He may think that the facts disclose an offence under Sec.
324 Indian Penal Code only and he may take cognizance of an offence under Sec. 324 instead of Sec. 307.
Similarly if a police report mentions that half a dozen persons examined by them claim to be eye witnesses to a murder but that for various reasons the witnesses could not be believed, the Magistrate is not bound to accept the opinion of the police regarding the credibility of the witnesses.
He may prefer ignore the conclusions of the police regarding the credibility of the witnesses and take cognizance of the offence.
If he does so, it would be on the basis of the statements of the witnesses as revealed by the police report.
He would be taking cognizance upon the facts disclosed by the police 942 report though not on the conclusions arrived at by the police.
It could not be said in such a case that he was taking cognizance on suspicion.
In Tula Ram & Ors.
vs Kishore Singh (supra) the Magistrate, on receiving a complaint, ordered an investigation under Sec.
156(3).
The Police submitted a report indicating that no case had been made out against the accused.
The Court, however, recorded the statements of the complainant and the witnesses and issued process against the accused.
It was contended that the Magistrate acted without jurisdiction in taking cognizance of the case as if upon a complaint when the police had submitted a report that no case had been made out against the accused.
This Court held that the Magistrate acted within his powers and observed that the complaint did not get exhausted as soon as the Magistrate ordered an investigation under Sec.
156(3).
We are, therefore unable to agree with the submission of Shri Sibal that the Magistrate acted without jurisdiction in taking cognizance of the offence and issuing process to the accused notwithstanding the fact that the police report was to the effect that no case had been made out.
We do not propose to say a word about the merits of the case since it was entirely a matter for the learned Magistrate to take cognizance or not to take cognizance of the several offences.
We however wish to observe that it was wholly unnecessary for the Magistrate to write such an elaborate order as if he was weighing the evidence and finally disposing of the case.
We also desire to say that some of the observations of the learned Magistrate about the District Magistrate were wholly uncalled for as the latter was yet to appear before him as a witness.
We are told that the case has already been transferred to some other Magistrate.
It is, therefore, unnecessary to say anything further in the matter.
The appeal is, therefore, dismissed.

Output:
On a complaint by the complainant that the appellant, armed with a revolver and accompanied by two persons, trespassed into his house and threatened to kill him, the Magistrate ordered investigation by the police under section 156(3) of the Code of Criminal Procedure.
In their report under section 173 the police stated that the complaint was false in that on the date and time mentioned therein, the appellant was at a different place far away from the place where the complainant alleged that the appellant had threatened to kill him.
Disagreeing with the conclusion of the police the Magistrate took cognizance of the case under sections 448, 451 and 506 I.P.C. and directed the issue of process to the appellant.
The appellant 's petition seeking to quash the proceedings before the Magistrate was dismissed by the High Court.
In appeal to this Court, it was contended on behalf of the appellant that the Magistrate was not competent to take cognizance of the case as if it was upon a police report since the report under section 173 by the police did not disclose any offence having been committed by the appellant.
Dismissing the appeal ^ HELD: Where the Magistrate, on receiving a complaint orders investigation under section 156(3) and receives a report under section 173 to the effect that no offence was disclosed against the accused, the Magistrate might either (i) decide that there is no sufficient ground for proceeding further and drop action or (ii) he may take cognizance of the offence under section 190(1)(b) and issue process without being bound in any manner by the conclusion of the police or (iii) he may take cognizance of the offence under section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under section 200.
If he adopts the third alternative, he may hold or direct an enquiry under section 202 if he thinks fit.
Thereafter he may dismiss the complaint or issue process as the case may be.
[940E G] In any event, it is impossible to say that the Magistrate, who takes cognizance of an offence on the basis of the facts disclosed in the police report, 936 must be said to have taken cognizance of the offence "on suspicion" and not upon police report, merely because he and the police arrived at different conclusions from the facts.
The Magistrate is not bound by the conclusions of the police: if he ignores their conclusions and takes cognizance of the offence himself, he does so upon the facts disclosed by the police report though not on the conclusions arrived at by them.
In such a case, it cannot be said that he was taking cognizance "on suspicion".
[942E H] In Abhinandan Jha & ors.
vs Dinesh Mishra ; , where this Court stated that the Magistrate could take cognizance of the offence under section 190(1)(c) notwithstanding the contrary opinion of the police, the reference to sub clause (c) therein was a mistake for sub clause (b).
The argument of the appellant that the Court, in this case, had apparently taken the view that the Magistrate could take cognizance of the offence not under section 190 (1)(b) as if it was a police report but under section 190(1)(c) as if it was "on suspicion" is not sustainable, because section 190(1)(c) was never intended to apply to cases where there was a police report under section 173(1).
[942C D]


Input:
il Appeal No. 129 of 1965.
Appeal by special leave from the judgment and decree dated August 24, 1962 of the Andhra Pradesh High Court in Appeal No. 419 of 1958.
S.T. Desai, M.S.K. Sastri and M.S. Narasimhan, for the appellants.
H.R.Gokhale and R. Ganapathy lyer, for respondents Nos.
The Judgment of the Court was delivered by Shelat, J.
This appeal by special leave is directed against the judgment and decree of the High Court of Andhra Pradesh confirming the dismissal by the trial Court of the suit filed by appellants 1 and 2.
The pedigree set out below clarifies the relationship between the parties : 295 Chintalapati Venkatapatiraju Somaraj Sitharamaraju (Plaintiff in O.S. 21/23) Pullamraju (died 19 12 1913)widow Surayamma (died 22 10 50) Daughter Subbay Venkay Somaraju Son (said Radhyamma died in yamma yamma died to have been (died 6 4 27) infancy) (died) (died 29 3 21) born and died ' 11 8 56) in infancy).
Kalidindi Venkata Kali Pinnamaraju Subbaraju(1st dindi Gopala Prabhakara Plaintiff) Raju (2nd Lakshmipatiraju Plaintiff) 6th Defendant) Venkatapati Venkayamma Rajayamma Suryamma Raju Subbaraju (1 st Defendant) Rangamma Sitaramaraju Venkatapatiraju Vijayasubbaraju (2nd Defendant) (3rd Defendant) (4th Defendant) Pullamraju died leaving him surviving his undivided Somaraju, his widow Surayamma and three daughters.
Somaraju died on March 29, 1921 whereupon the said Surayamma claimed that he had left a will dated March 26, 1921 whereunder all the properties had been bequeathed to her absolutely.
Sitaramaraju the uncle of Pullamraju filed Suit No. 21 of 1923 for a declaration that Somaraju 's will was not valid as he had executed it when he was a minor and was not in a sound disposing state of mind.
296 Surayamma in her written statement filed in that Suit contended that Somaraju was a major having been born on January 7. 1903 and was in a sound disposing state of mind when he executed the said will.
The suit ended in a compromise decree by which Sitartmaraju admitted that Somaraju was a major when he died, that he was in a sound disposing state of mind and that the will therefore was genuine and valid.
Under the compromise decree he received 26 out of about 57 acres of land and the rest of the property was retained by Surayamma.
Thereafter Surayamma conducted herself as the absolute owner of the properties which came to her under the said decree.
By two deeds, dated March 30, 1925 she settled part of the land received by her under the said decree in favour of her two daughters the mothers of plaintiffs 1 and 2 and defendant 6 respectively.
The said properties have since been possessed of and enjoyed first by the said two daughters and later by plaintiffs 1 and 2 and defendant 6.
On November 3 1947 Surayamma gifted another portion of the said property to defendant No. 6. Surayamma died on October 22, 1950.
Plaintiffs and 2 and defendant 6 (the present appellants) thereafter obtained a deed of surrender from their mothers and filed the suit out of which this appeal arises, contending that they were the nearest reversioners of Somaraju, being the sons of his sisters; that the said compromise decree was collusive that the said Somaraju did not execute the said will that even if he did he was not a major nor of sound disposing state of mind when he executed it and that therefore the said will was not valid.
By a subsequent amendment of the plaint they also contended that some of/he lands left by Somaraju were not disposed of under the said will that there was consequently intestacy in respect thereof which in any event they as reversioners were entitled to claim.
The respondents resisted the suit contending that the said will was valid, that the said compromise decree was binding on the appellants and that they having accepted and enjoyed the said properties settled upon their mothers by Surayamma, they were estopped from challenging the will or the said decree.
They also denied that any of the properties left by Somaraju remained undisposed of by the said will or that there resulted any intestacy regarding them or that on such intestacy the appellants became entitled thereto.
The trial Court held that Somaraju did execute the will that the original will was with the appellants and was suppressed by them, that therefore its certified copy produced from the records of the court was admissible, that the ' said will was valid as Somaraju was a major and in a sound disposing state of mind when he executed it, that the said decree was by way of a family arrangement in settlement of bona fide disputes that it was binding upon the appellants and that the appellants were estopped from disputing the will or the said decree.
The trial Court also repelled the contention that Somaraju left any property undisposed of under the said will or 297 that the appellants became entitled thereto upon an intestacy.
In appeal against the said judgment the High Court confirmed the dismissal of the suit by the trial Court.
The High Court also confirmed the trial Court 's conclusion that the certified copy of the said will was admissible as secondary evidence thereof and that Somaraju was a major and in a sound disposing state of mind when he executed the said will.
The High Court also confirmed the trial Court 's conclusion that the said decree was binding on the appellants and that 'the appellants and their respective mothers having accepted and enjoyed the properties settled upon them by Surayamma were estopped from disputing either the will or the said decree.
Mr. S.T. Desai for the appellants raised the following contentions : (1) that the burden of proof that the will was validly executed by Somaraju and that he was a major at the time of executing it was upon the respondents and that they failed to discharge that burden; (2) that the conclusion of the High Court and the trial Court that he was 19 years of age at the time he executed the will was not justified; (3) that the High Court erred in holding that extracts from the birth and death Registers produced by the appellants were not public documents within the meaning of section 35 of the Evidence Act and therefore not admissible; (4) that the High Court erred in holding that even if the will was not proved to have been validly executed, the said compromise decree was binding on the appellants and estopped them from challenging the validity of the will or the said decree; (5) that the appellants did not claim through the said Venkamma but under the Hindu Law of Inheritance (Amendment) Act 2 of 1929 and therefore there was no question of the compromise decree being binding on them or their being estopped from disputing 'the will or the said decree; and (6) that in any event, Somaraju did not dispose of land admeasuring about A 15.14.that there was therefore intestacy in regard to it and the appellants as reversioners ought to have been held entitled to it.
As aforesaid, the respondents did not produce the original will but produced only its certified copy, exhibit B. 9; which they obtained from the record of Suit No. 21 of 1923 wherein Surayamma had filed the original will along with her written statement.
The respondents, however, had given notice to the appellants to produce the original will alleging that it was in their possession but the appellants denied the allegation and failed to produce the will.
Both the trial Court and the High Court were of the view that the said will along with other papers of Somaraju were in the appellants ' custody that they had deliberately withheld it as it was in their interest not to produce it.
The trial Court therefore was in these circumstances justified in admitting the certified copy of the will as secondary evidence of the contents of the will.
Since the will was executed in 1921 and the testator had died soon after its execution it was not possible to produce either its writer or the witnesses who attested it.
It was undisputed that its scribe and the attesting witnesses were all dead except Dalapati Venkatapathi Raju, D.W. 4.
But the appellants ' contention as regards D.W.4 was that he was not the same person who attested the will.
The High Court appears to have relied upon section 90 of the Evidence Act and to have drawn the presumption that the will being more than 30 years old it was duly executed and attested by the persons by whom it purported to have been executed and attested.
Such a presumption, however, under that section arises in respect of an original document.
Where a certified copy of a document is produced the correct position is as stated in Bassant Singh vs Brij Rai(2) where the Privy Council laid down that if the document produced is a copy admitted under section 65 as secondary evidence and it is produced from proper custody and is over 30 years old only the signatures authenticating the copy can be presumed to be genuine.
The production of a copy therefore does not warrant the presumption of due execution of the original document.
The Privy Council repelled the argument that where a copy of a will has been admitted the Court is entitled to presume the genuineness of such will which purports to be 30 years old.
Relying on the words "where any document purporting or proved to be 30 years old" in section 90, the Privy Council held that the production which entitles the Court to draw the presumption as to execution and attestation is of the original and not its copy and that the decisions of the High Courts of Calcutta and Allahabad on which the argument was based were not correctly decided.
This view has since then been approved of by this Court in Harihar Prasad vs Must of Munshi Nath Prasad(3).
The High Court therefore was not entitled to presume from the production of the copy either the execution or the attestation of the said will.
But, apart from such presumption there was evidence from which the High Court could conclude that 'the will was duly executed by Somaraju and attested by the witnesses who appear to have affixed their signatures thereto.
There was, firstly, the fact of Surayamma having produced the will soon after its execution in Suit No. 21 of 1923.
Secondly, there was evidence of her having based her claim to Somaraju 's property in the said suit by virtue of and under 'the said will.
Thirdly, there was the evidence of conduct of Surayamma in ' dealing with the property as an absolute owner basing her claim under the said wilt.
Fourthly.there were the three settlement deeds executed by her in favour of her daughters and lastly the fact of the terms of the said will being natural and rational, consistent with Somaraju 's anxiety that in the absence of any male heir to him the properties should go to his mother to enable her 'to make due provision for his three sisters instead of dying intestate and the properties thereon going to the said Sitaramaraju and his heirs under the law as it then stood.
There was next the evidence of D.W. 4 testifying to the execution of the wilt by Somaraju and to his having attested the original will along with other witnesses.
His evidence also was that Somaraju was then in a sound disposing state of mind.
Both the trial Court and the High Court accepted the evidence of D.W. 4 as of the person who along with others had attested the will.
There was thus ample evidence from which the High Court could conclude and in our view rightly that Somaraju executed the said will and was at the time in a sound disposing state of mind.
The effect of the certified copy of the will having been thus rightly admitted was as if the contents of the will were before the Court and the Court could proceed to construe those contents.
We are supported in this conclusion by authority.
In Setthaya vs Somayalulu(1) the original grant which was 250 years old was lost but a copy of it was produced from the respondents ' custody.
It bore the following endorsement of the predecessors of the respondents: 'Originals have been retained by us and copies have been filed, 1858 '.
The Privy Council held that the copy was properly admitted under section 65 and 90 of the Evidence Act as secondary evidence of the terms of the grant and that the statement and the said endorsement authenticating the copy were evidence as a statement by a deceased person in a document relating to a relevant fact and also as an admission of the respondents ' predecessors.
The Privy Council also held that the copy being admissible as secondary evidence of the terms of the original grant the Court could proceed upon the footing that the terms of the said grant were before it and could therefore consider them.
The High Court was therefore quite competent in construing the contents of the said will and in holding that the terms of the said will were 'natural and rational and proved that Somaraju was fin a sound disposing state of mind.
The question, however, still remains whether Somaraju was a major at that time.
The onus of proof that he was then a major and could competently execute it was on the respondents who relied on the will (See Ganaprakasam vs Paraskthy)(2).
The appellants ' case was that Somaraju was born in 1905 and not in 1903 as alleged by the respondents.
The admitted position was that all the children of Pullamraju were born in the village Isukapalli.
The parties in support of their rival contentions produced both oral and documentary evidence.
Apart from the certified copy of the will and Suryamma 's written statement in Suit No. 21 of 1923, 4 other documents Exs.A4, A5, A9 and B24 were filed in the trial Court.
B24 produced by the respondents was an extract from the 'birth register of Isukapalli.
A4 and A5 produced by the appellants were respectively an extract from the birth register of Isukapalli and an extract from the death register relating to Somaraju 's death.
exhibit A9 also produced by the appellants was a reply to them from the department concerned that there was no entry in regard to Somaraju 's birth in the birth register of 1903 of Isukapalli.
Curiously the registers of births and deaths of IsUkapalli village for 1903 and 1905 were available in 1955 but in 1957 when the trial Court called for these registers it was informed that those registers could not be traced.
The result was that the only evidence before the Court consisted of certified copies of extracts, Exs. A4 and A5, from those registers and the said letter exhibit A9.
exhibit B24, it appears, was motheaten overwritten and tampered with at some places with ink different from the original ink in which the rest of the document was written.
Both the trial Court and the High Court were agreed that it could not therefore be considered as furnishing evidence of Sornaraju 's date of birth.
exhibit A4 was an extract of birth register for the year 1905.
The appellants ' contention was that this extract furnished evidence that Somaraju was born in 1905.
It was said to have been obtained by Surayamma in 1941 as she intended to file some suit which she ultimately did not.
Assuming that Ex A. 4 was admissible under section 35 of the Evidence Act, it could not assist the appellants as it only indicated at best that a son was born of Pullamraju in 1905.
The case of the respondents however was that another son besides Somaraju was born of Pullamraju after Somaraju 's birth.
In the absence of any evidence led by the appellants that A.4 related to Somaraju and no one else, the extract obviously could not establish that Somaraiu was born in 1905 and therefore was a minor in 1921.
exhibit A. 5 showed that Somaraju died on March 29 1921 but there was dispute as to the date of his death.
There was no doubt reference in that extract that he died at the age of 16.
But the High Court found that the figure '16 ' for his age was written in an ink different from that used for the others entries in the extract and that that figure was an interpolation made by someone subsequently.
Both the trial Court and the High Court were in fact of the opinion that Exs.A4 and A.5 were not genuine.
The High Court was further of the view that exhibit A.5 had been tampered with and therefore could not be relied upon.
Exhibits B.24, A.4 and A.5 thus having been found to have been tampered with and therefore unreliable documents, it is not necessary for us to go, as the High Court did, into the question whether such extracts were admissible under section 35 of the Evidence Act or not.
Besides these extracts, the appellants also produced Exs.A.8 and A.9 a memo issued by the Taluk office, Kakinada and an endorsement dated September 17, 1955 issued by the Head Clerk of the Taluk Office, Pithapuram respectively.
The memo stated that there were no entries in the birth register of 1903 for Tanuwalla village relating to the birth of any of the children of Pullamraju.
The endorsement stayed that an application for extract from the birth register for 1903 in respect of the birth of any of the children of Pullamraju was fried but as there were no such entries in the birth register for/sukapalli for 1903 the stamps sent by the applicants for the copy were returned.
Neither the writer of exhibit A.8 nor of A.9 was examined to testify to the contents of 'the said memo and the said endorsement and to establish that notwithstanding their diligent efforts the original registers were not traceable.
A.8 and A.9 could not be admitted in evidence without the formal proof of the entries and were rightly held inadmissible.
We need not consider the rest of the documentary evidence viz. Exs.A. 3 and A.7 produced by the appellants as neither of them was relied upon before us.
Both the parties, as aforesaid, led considerable oral evidence.
However, except for the evidence of D.W. 4 both the trial Court as well as the High Court found that the oral evidence of these witnesses was speculative in character and therefore could not be said to have established either of the rival contentions as to Somaraju 's age.
No reason has been shown that their assessment of this evidence was wrong.
This being the position regarding the evidence led by the parties there remains only three pieces of evidence requiring consideration, viz., (1 ) the statement of Somaraju as to his age in the said will; (2) the statement of Surayamma in the said written statement and (3) the subsequent conduct of Surayamma, the mothers of the appellants and the appellants themselves.
The question canvassed both before the High Court and us was whether the statements made by Somaraju and Surayamma in the said will and in the said written statement respectively were admissible and could be used to establish that Somaraju was 19 years of age at the time when he executed the said will.
Section 32(5) of the Evidence Act provides that : "When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge" Section 32(6) provides that "When the statement relates to the existence of any relationship by blood, marriage or adoption between 1 Sup.CI/68 5 302 persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statements are usually made".
Both the sub sections require that such a statement can be admissible only if it was made before the question in dispute was raised.
It is clear from sub section 5 that if construed literally it is possible to contend that a statement regarding the age of the person concerned is not one relating to the existence of any relationship by blood or marriage or adoption.
But such a literal construction is not a proper one as has been ruled in more than one decision.
In Oriental Govt.Security Life Assurance Co. Ltd. vs Narasimha Chari(1).Bhashyam Ayyangar J. Following Rama Chandra Dutt vs Yogeshwar Narain Deo(2) held that statement as to the age of a member of a family made by his deceased sister is admissible under section 32(5), the principle being that the time of one 's birth relates to the commencement of one 's relationship by blood and therefore a statement as to his age made by a person having special knowledge relates to the existence of such relationship.
This observation was approved in Mohammed Syedol Ariffin vs Yeohooi Gark(3) where the Privy Council held that the question of age in such a case falls within section 32(5) as it indicates the commencement of such relationship.
In Gulab Thakur vs Fadali(4) a statement by a person made when he was 36 years of age that he was adopted when he was 4 years old was held admissible after his death prove the fact of his adoption as he possessed special knowledge about the relationship required by the section.
It was also held that the fact that the person making the adoption died while 'the adopted was too young to remember him would not be material as the latter would be able to declare that he had been adopted from that acquaintance with the history of his family which he would necessarily possess.
Similarly, in Mst.Naima Khatun vs Basant Singh(5) the High Court of Allahabad following the decision in Ariffin vs Yeohooi Gatk(3) held that a statement as regards age is tantamount to a statement as to the existence of relationship.
Therefore a statement by an adoptive mother as regards the age of the adopted boy, although it would not show her own relationship with him was admissible.
In Pralhad Chandra vs Ramsaran(6), the Calcutta High Court held that a statement in the Guardianship application as to the date of birth is admissible if the person who had made it is dead and had special means of knowledge of the relationship.
This being the position under section 32(5) the statement made by Somaraju in his will that he was 19 years of age at the time of its execution was admissible and was rightly relied upon by both the trial Court and the High Court as establishing that Somaraju was a major and was competent to make the said will.
As regards the written statement of Surayamma the position of her declaration therein is somewhat different.
Both sub sections 5 and 6 of section 32, as aforesaid, declare that in order to be admissible the statement relied on must be made ante litem motam by persons who are dead, i.e., before the commencement of any controversy actual or legal upon the same point.
The words "before the question in issue was raised" do not necessarily mean before it was raised in the particular litigation in which such a statement is sought to be adduced in evidence.
The principle on which this restriction is based is succinctly stated in Halsbury 's Laws of England, 3rd Ed.15, p. 308 in these words: "To obviate bias the declarations are required to have been made ante litem motam which means not merely before the commencement of legal proceedings but before even the existence of any actual controversy concerning the subject matter of the declarations".
In Kalka Prasad vs Mathura Prasad(1) a dispute arose in 1896 on the death of one Parbati.
In 1898 in a suit brought by one Sheo Sahai a pedigree was filed.
After this, the suit from which the appeal went up to the Privy Council was instituted in 1901.
It was held there that the pedigree filed in 1898 was not admissible having been made post litem motam.
As a contrast there is the decision in Bahadur Singh vs Mohan Singh(2), where the Privy Council held certain statements made in 1847 to be admissible as the heirship of the then claimants was not then really in dispute.
(See also Field on the Law of Evidence, 9th Ed.III, p. 1847).
There can be no controversy that when Surayamma filed her written statement a dispute had arisen as to the age of Somaraju inasmuch as Sitaramaraju the plaintiff in the said suit had alleged that Somaraju was a minor at the time he executed his will and Surayamma had in denial of that averment asserted that Somaraju was a major at the relevant time.
The controversy therefore having existed at the time when the said statement was made it was inadmissible both under sub section 5 and sub section 6 and could not be availed of by the respondents.
As regards the subsequent conduct of the parties it is clear that both Sitaramaraju who was then the only reversioner under the law as it stood prior to 1929 and the said Surayamma (1) 35 I.A.166.(2) 29 I.A.1.304 conducted themselves on the footing that the said will was competently made and by virtue of that will Surayamma had become the absolute owner of the properties left by him.
Similarly, the three daughters of Surayamma, the mothers of the appellants, and the appellants themselves accepted the statements made by Surayamma in favour of her daughters and took possession of and enjoyed the lands in suit.
Neither the said daughters nor the appellants until the present suit was filed ever raised any contention regarding the validity of the said will.
The authority of Surayamma to settle the said properties treating herself as the absolute owner of those properties was never challenged by the appellants.
Such a conduct iS only consistent with the fact that it was understood amongst the members of the family that Somaraju was a major at the time of the execution of the will and the will was validly made.
In our view there being the statement of Somaraju admissible under section 32(5) coupled with 'the evidence of D.W. 4 as also the evidence as to the conduct of the parties before the Court there was ample evidence on which the trial Court and the High Court could rightly found their conclusion that the will was made at the time when Somaraju was a major.
Such a conclusion was obviously fatal to the appellants ' claim in the suit.
In view of our conclusion that the said will was competently made it is not necessary to go into Mr. Desai 's contentions Nos. 4 and 5.
There remains therefore his contention No. 6 only for consideration.
The argument that Somaraju did not dispose of land admeasuring about 15 acres 14 cents by the said will and that there was a resultant intestacy is rounded upon the fact that in the Schedule to the said will out of Survey No. 5/1 which measured 18 acres 67 cents a portion only is set out and the Schedule does not set out Survey Nos. 5/5 and 5/12.
The said will, however, in para 1 expressly states that the testator thereby was disposing of his entire property, movable and immovable, in favour of his mother.
It also states that the total area of land possessed of by him was 60 acres 9 cents and that he was bequeathing to his mother the said entire area.
The fact that the total area comprised of the several survey numbers mentioned in the Schedule do not aggregate 60 acres 9 cents appears to be the result of some mistake.
It appears from the record that the survey numbers in vogue in 1902 were altered in/912.
It is not possible to say what record was with Somaraju when he described the said land by its survey numbers in the said Schedule and whether he had at that time the old or the ,new record of the revised survey numbers.
It is possible that if the revised record was not before him at that time a mistake in describing the land by its survey numbers might occur and that would explain the discrepancy between the total measurement mentioned in the body of the will and that in the Schedule.
In face, however, of the expressly declared intention in the body of the will that he was disposing of the entire property including the land measuring 60 acres 9 cents it is impossible to hold that he desired to hold back a portion thereof from his mother and intended to leave it intestate.
We do not therefore find any justification for interfering with the conclusion of the trial Court and the High Court that Somaraju disposed of the entire property.
Consequently we must reject Mr. Desai 's contention.
The appeal is dismissed with costs.
V.P.S. Appeal dismissed.

Output:
A Hindu died bequeathing all his properties to his mother absolutely by a will executed three days before his death.
In the will he stated his age to he 19 years, and that he was thereby disposing of his entire properly, movable and immovable, in favour of his mother.
After his death, the nearest reversioner under the law as it then stood, filed a suit for a declaration that the will was not valid because it was executed by the testator when he was a minor and when he was not in a sound disposing state of mind.
The mother of the testator (legatee) contened the suit and asserted in her written statement that when he executed the will the testator was a major and was in a sound disposing state of mind.
The suit was compromised By the compromise, the reversioner admitted that testator when he executed the will was a major and was in a sound disposing state of mind, that the will was valid and genuine, and the testalor 's properties were divided between the reversioner and the legatee There was a decree in terms of the compromise.
Thereafter, the reversioner and the legatee conducted themselves as the absolute owners of their respective shares of the property.
The legatee executed settlement deeds in favour of her daughters with respect to part of the land received by her under the decree.
The daughters took passion of the properties accepting their mother as their absolute owner.
After the death of the legatee, the appellants.
who were the sons of those daughters obtained a deed of surrender from their mothers accepting the legatee as the absolute owner of the properties.
They then filed a suit against the respondents.
who were the descendants of the reversioner who filed the first suit contending that the compromise decree in the first suit was collusive.
that the testator was not a major nor of sound disposing state of mind when he executed the will, that the will did not.
cover all the properties of the testator and that the appellants were in any event entitled to those properties with respect to which there was an intestacy.
as the sisters sons of the last male holder under the Hindu Law of Inheritance (Amendment) Act of 1929.
The respondents contested the suit and case notice to the appellants to produce the original will alleging that it was in the posses 293 sion of the appellants, but the appellants denied the allegation, and the respondents, thereupon, relied upon a certified copy of the wilt produced from the records of the court filed in the first suit.
The trial court dismissed the suit and the High Court confirmed the dismissal in appeal.
In appeal to this Court, it was contended inter alia: (1) that the burden of proof that the will was validly executed by the testator and that he was a major at the time of executing it was upon the respondents ,red that they failed to discharge that burden; and (2) that there was an intestacy with respect to a portion of the land and that the appellants were entitled to it.
HELD:(1) (a) As the lower Courts held that the appellants deliberately withheld the original will, its certified copy could be admitted as secondary evidence of its contents under 8. 65 of the Evidence Act, 1872.
But the High Court was not justified in presuming under section 90 of the Evidence Act, that the will itself was duly executed and attested.
merely because the copy was more than thirty years old and was produced from proper custody.
Such a presumption arises only in respect of the original document and not with respect to a copy.
[297 H; 298 A, C. D, F] Harihar Prasad vs Must.
of Mttnshi Nath Prasad, [1956] S.C.R.1. followed.
Munnalal vs Krishobai, A.I.R. 1947 P.C. 15 and Basant Singh vs Bnj Pad, 62 I.A. 180, referred to.
But, apart from the presumption.
on the oral evidence adduced and from the conduct of the legatee, the High Court was justified, in concluding that the testator executed the will and was at that time in a sound disposing state of mind and in construing the contents of the will as disclosed by the certified copy and holding that it was natural and rational.
[298 G; 299 C, F G] Setthava vs Somayajulu, 56 I.A. 146, applied.
(b) The respondents who relied on the will had discharged the onus which lay on them, namely, of proving that the testator was a major at the time he executed the will.
[299 G H] The statement of the mother of the testator in the written statement of the earlier suit that the testator was a major was not relevant either under section 32(5) or 32(6) of the Evidence Act, because, it was made post litm motam.
The words in the sub ,section, namely, 'before The question in issue was raised ' do not mean before it was raised in the particular litigation in which such a statement is sought to be adduced in evidence.
They mean before the existence of any actual controversy.
When the legatee flied her written statement in the first suit a dispute had arisen as to the age of the testator, and the controversy having existed time when the statement was made; the statement was inadmissible.
1303 B D, F H] Bahadur Singh v, Mohan Singh, 29 I.A. 1 and Kalka Prasad vs Mathura Prasad, 35 I.A. 166, referred to.
But, the statement of the testator in the will that he was a major at the time he was executing it was relevant under the sub sections because.
294 the question of age fails within the sub sections as it indicates the commencement of relationship.
[303 A] Md. Syedol Arffin vs Yeohooi Gark, 43 I.A. 256, Rama Chandra Dutt vs Yogeshwar Narain Dec, I.L.R. , Oriental Govt.
Security Life Assurance Co. Ltd. vs Narisimha Chari, I.L.R. , Gulab Tharkur vs Fadali , Prolhad Chandra vs Ramsaran, A.I.R. 1924 Cal.
420, and Mst.
Naima Khatun vs Basant Singh, A.I.R. 1934 All. 406 referred.
Further the conduct of the appellants and their mothers was consistent only with the fact that it was understood amongst the members of the family that the testator was a major at the time of the execution of the will and that the will was validly made.
[303 H; 304 A D] The documents relied upon by the appellants, namely, a memorandum and an endorsement received from the Taluk Office showing that there were no entires relating to the birth of any children in the testators family in the birth register for the year in which the testator stated he was born, were not admissible in evidence as the writers of the documents were not examined to testify to the contents of those documents and to establish that notwithstanding their diligent efforts the original register was not traceable.
[301 B D] (2) In face of the expressly declared intention in the body of the will that he was disposing of the entire property it is impossible to hold that the testator desired to hold back a portion thereof from his mother and leave it intestate.
merely became, there was discrepancy between the total measurement mentioned in the body of the will and that in the schedule to the will.
[304 H; 305 A]


Input:
Appeal No. 321 of 1958.
Appeal by special leave from the Award dated the September 27, 1957 of the Industrial Tribunal, Bombay, in Reference (I.T.) No. 119 of 1957.
C. K. Daphtary, Solicitor General of India, J. B. Dadachanji and section N. Andley, for the appellant.
Rajani Patel and Janardan Sharma for respondent No. 1. 1959.
May 5.
The Judgment of the Court was delivered by WANCHOO J.
This is an appeal by special leave against the award of the Industrial Tribunal, Bombay, in a dispute between the Tata Oil Mills Co. Ltd., Bombay (hereinafter referred to as the company) and its workmen, in the matter of profit bonus for the year 1955 56.
The dispute arose over a demand made by the workmen for payment unconditionally as bonus for the year 1955 56 of a sum equivalent to four months ' wages/salary for all employees drawing wages/salary of less than Rs. 500 per menses.
This dispute was referred to the Industrial Tribunal by the Government of Bombay by its order dated June 18, 1957.
The company had already paid 21 months ' basic wages as bonus to its workmen and the real dispute was thus only about the remaining bonus for a month and half.
3 The case of the workmen was that the company had made record profits during the year and declared a dividend of 12 per centum free of income tax, the workmen were getting much less than the living wage and the dearness allowance was not sufficient to fill the gap, and, therefore, profit bonus at the rate of four months ' basic wages should be granted.
The company, on the other hand, contended that it was paying graded scale of wages with annual and biennial increments and had already paid profit bonus for 2 1/2 months.
It was not possible for the company to pay more than that as bonus, as the available surplus according to the Full Bench formula did not justify it.
It was also pointed out that though the company started as far back as 1917, the shareholders began to get dividends only from 1940, and, therefore, a dividend of 12 per centum free of income tax was in the circumstances not high.
The company also claimed that in making calculations for the purposes of the Full Bench formula certain items of extraneous income should not be taken into account.
Next it claimed that a profit of Rs. 3 lacs appearing in the accounts due to the change in the method of valuation was no real profit due to the efforts of labour and should not be taken into account in arriving at the available surplus.
Lastly, it also claimed that it was entitled to 4 per centum interest on the working capital, including the amount in the depreciation fund.
The Industrial Tribunal disallowed the claim of the company on all these three points and after making relevant calculations came to the conclusion that there was a sufficient surplus available to permit the grant of bonus for 3 1/2 months calculated on basic wages and therefore awarded the same.
The company thereupon applied for special leave to appeal, which was granted; and that is how the matter has now come up before us for decision.
We shall first take the question of extraneous income.
Six items were sought to be excluded by the company as extraneous income, and they were these: 4 In lacs Rs. (i) Income earned by way of rent, light and power. .0 24 (ii)Estate Revenue. 0 08 (iii) Profit on sale of empty barrels 0 89 (iv) Excess provision for expenses in the previous year 0 31 (V) Refund of income tax on revision of Cochin assessment of Excess Profits Tax 0 49 (vi) Sale proceeds of tin cans, scraps, logs, planks, gunnies &c. 2 11 Total 4 12 The Tribunal rejected the claim with respect to all these items, though in the judgment it mentioned only items (i), (ii), (iii) and (vi) as those in dispute.
Apparently, items (iv) and (v) were not in dispute before it; but while making calculations, it seems to have lost sight of this and disallowed the claim with respect to these two items also.
Learned counsel for the respondents appearing before us has stated that the claim with respect to items (iv) and (v) was conceded by the workmen before the Tribunal and it seems that by over sight these items were not excluded by it.
He fairly concedes that these two items may be excluded from consideration in making calculations for arriving at the available surplus.
We are thus left with four items, which were disallowed by the Tribunal.
The reason given by the Tribunal for disallowing these items was that they formed part of the profits earned in the course of the company 's business and there was no good reason for deducting them from the profits.
It further went on to say that as regards income earned by way of rent, light and power it was not disputed that expenditure in respect of buildings from which the rent was derived, such as on repairs and maintenance, is included in the expenditure side of the account, and taxes and rates for these buildings were paid by the company.
There was thus no reason for deducting this amount from the profits.
It did not consider the 5 other three items specifically and was content to include them on the general ground that they were profits earned in the course of the company 's business.
Mr. Daphtary appearing for the company has drawn our attention to a number of cases decided by industrial tribunals as well as labour appellate tribunals, where such items of income have been excluded on the ground that they are extraneous income unrelated to the efforts of the workmen.
We do not think it necessary to refer to all these decisions and it is sufficient to say that these decisions support the contention put forward.
The main reason given in these decisions for excluding what, is termed as extraneous income is that they are unrelated to the efforts of workmen.
We may refer only to two of these decisions of the labour appellate tribunal in this connection.
In The Mill Owners ' Association, Bombay vs The Rashtriya Mill Mazdoor Sangh, Bombay (1) in which the Full Bench formula was evolved, the appellate tribunal remarked at page 1257: " No scheme of allocation of bonus could be complete if the amount out of which a bonus is to be paid is unrelated to employees ' efforts.
" The Appellate Tribunal reiterated this in Shalimar Rope Works Mazdoor Union, Howrah vs Messrs. Shalimar Rope Works Ltd., Shalimar, Howah (2) by observing at page 372 that " it is however too late in the day to question the view that there are profits unrelated to workers ' efforts and referred to as 'extraneous profits ' and that such profits must be left out of account in deciding the question whether there is available surplus in any particular year." Income received by way of rent of quarters and by sale of scrap materials has generally been treated as extraneous income by the industrial tribunals on the basis of these decisions of the Labour Appellate Tribunal.
It is the correctness of this view which has been canvassed before as in this appeal.
Reliance has also been placed by some tribunals on the decision of this Court in Muir Mills Co. Ltd. vs Suti Mills Mazdoor (1) (2) 6 Union, Kanpur (1), in this connection.
This Court ,observed at page 998 as follows: "There are however two conditions which have to be satisfied before a demand for bonus can be justified, and they are, (1) when wages fall short of the living standard and (2) the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production.
" It was further observed at page 999 " It is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits.
If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus.
" It is clear from these observations that this Court was not dealing with the question of extraneous income as such in the Muir Mills Case (1).
The principles laid down in that case show that there must be profits in the particular year for which bonus is claimed, resulting in an available surplus before profit bonus can be awarded.
It is only when profits are made that profit bonus can be awarded, subject to two further conditions, namely, (1) wages fall short of the living standard and (2) the industry makes large profits part of which are due to the contribution which the workmen make _in production.
It is this last condition which seems to have been relied upon by industrial tribunals in holding that there must be direct connection between the efforts of labour and the profits, and unless that direct connection is established the profits must be treated as unrelated to the efforts of labour and thus become extraneous income.
There is no doubt that there must be contribution of the workmen in earning profits before they are entitled to profit bonus; but it was not laid down in the Muir Mills Case (1) that direct connection between the efforts of the workmen and the particular item of profit earned must be established before the profit can be taken into account for the purposes of arriving at the available (1). 1955 (1) S.C.R. 991. 7 surplus.
An industrial concern carries on a certain business.
In carrying on that business it employs.
capital as well as labour, and generally speaking the profits earned in the normal course of business at the end of year are the result of the joint effort of capital and labour.
Even so, it may be recognized that there may be instances of extraneous income for the purpose of the Full Bench formula due (i) either to some part of the profits not having been earned in that year, (ii) or to some part of profits arising out of fortuitous circumstances altogether unconnected with the efforts of labour.
A third category may be the income arising out of sale of fixed or capital assets.
Such income or profit may be called extraneous income as either it did not really arise in that year or though it has arisen in that year, labour has not contributed anything towards its accrual; it may therefore not be taken into account in calculations according to the Full Bench formula.
But apart from these cases, we cannot see how income arising during the year in the normal course of business of the concern can be called extraneous income merely on the ground that no direct connection between the efforts of labour and the accrual of the income has been established.
In this very case we find an instance of the first category in two items relating to return of excess provision for expenses and refund of excess profits tax.
These two amounts have gone to swell the profits of this year; but they have not arisen in this year and may, there fore, properly be treated as extraneous income.
An instance of the second kind is to be found in the profit of Rs. 3 lacs made in this year by a change in the method of valuation of the company 's assets, which is entirely unconnected with the efforts of labour.
But so far as the other four items are concerned, they are earned by the company in the normal course Of its business and there is no reason why they should be excluded on the ground that it has not been proved that they are the result of direct efforts of, labour in this year.
Let us take these four items one by one.
The first is the item of income earned by way of rent, light and 8 power.
It is well known that many industrial concerns provide amenities for their workmen by building quarters, which are provided with light and power from the concern 's power house.
The quarters and power house are built out of capital or profits earned in past years.
If they are built out of capital, there is provision for a return which is generally at 6 per centum on the paid up capital.
Even if they are built out of past profits, the depreciation and rehabilitation charges fall on the gross profits before the available surplus is arrived at.
Besides, expenditure with regard to repairs and maintenance, and rates and taxes is all paid out of the income of the concern before the gross profits are arrived at.
In other words these expenses are paid out of the profits in the earning of which the workmen have contributed their labour.
How can the company claim to exclude the rent etc., from the profits while meeting the expenditure relating to such assets out of the profits, part of which is attributable to the efforts of labour ? In short, income by way of rent, light and power arises in the normal course of business of the concern and there is no reason why a direct contribution by labour during the year in question must be insisted upon in the case of such income.
The company must also be employing some labour for purposes of maintenance and repairs of the quarters and powerhouse, even though the labour may not be wholly allocated to this work only.
We are, therefore, of opinion that income from rent, light and power arises in the normal course of business of a concern and cannot be treated as extraneous income in the sense described above.
The next item is estate revenue.
We are told that the company has coconut groves, which produce coconuts used in preparing oil which is one of the main items of the company 's business.
We are also told that sometimes the entire produce of these groves is not used in the manufacture of oil and therefore some part of the produce is sold.
This income is out of this part sold in the market.
Here again the income arises in the normal course of business and the expenses for looking after and maintaining the groves are paid 9 by the company and entered into its account.
The company must also be employing labour to look after the groves.
In these circumstances.
we fail to see why this income by sale of surplus coconuts should be excluded from the profits for the purpose of the Full Bench formula.
Then we come to the profit on sale of empty barrels and sale proceeds of tin cans, scraps, logs, planks, gunnies etc.
These items may be taken together, for the nature of the receipt is the same, though on account of the method of accounting employed, the income in the case of barrels is shown as profit while in the case of scraps etc., it is shown as sale proceeds: It is said that this is extraneous income because it is unrelated to the efforts of labour.
We cannot accept this contention, for this income again is in the normal course of business.
Further when the company buys chemicals (for example), it pays for the chemicals as well as the containers, namely, the barrels.
When the chemicals are used up these empty barrels are sold.
Whatever is the income from the sale of these barrels is in reality a reduction in the cost price of chemicals to the company, though by the method of accounting employed it may appear as profit on the sale of barrels.
We see no reason why the reduction in cost price of chemicals should not be taken into account for the purpose of arriving at gross profits in making calculations for the Full Bench formula.
Some scraps are normally left over in the process of manufacture.
Whatever income is derived from such scraps also goes to reduce the cost price of materials used in production and thus to increase the profits.
We do not see: why this income arising in the normal course of the company 's business should not be taken into account on the plea that labour has not, directly contributed in its accrual.
We are, therefor, of opinion that all these four items were rightly taken into account by the Tribunal in arriving at the gross.
profits.
Then we come to the profit of Rs. 3 lacs made by a change in the method of accounting.
The Tribunal did not accept this income as extraneous and in so doing it fell into error.
This income of Rs. 3 lacs has 10 nothing whatsoever to do with the efforts of labour, even though it has arisen this year.
It has arisen out of a fortuitous circumstance inasmuch as this year there was a change in the basis of valuation of stock.
It is not income in the normal course of business, because it is not likely to arise ever again.
In the circumstances this income of Rs. 3 lacs must be treated as extraneous income and excluded for the purpose of calculations based on the Full Bench formula.
The last item with which we are concerned is the return on the amount of depreciation reserve used as working capital.
An affidavit was made on behalf of the company that it had used its reserve funds comprising premium on ordinary shares, general reserve, depreciation reserve, workmen 's compensation reserve, employees ' gratuity reserve, bad and doubtful debt reserves and sales promotion reserve as working capital.
The Tribunal, however, allowed return at 4 per centum on a working capital of Rs. 31.88 lacs.
This excluded the depreciation reserve but included all other reserves which were claimed by the company and having been used for working capital.
The Tribunal gave no reason why it excluded the amount of the depreciation reserve in arriving at the figure of working capital.
A return is allowed on the reserves used as working capital on the ground that if these reserves are not used for this purpose, the concern would have to borrow money and pay interest on that.
This being the basis on which a return on reserves used as working capital is allowed, there is no reason why, if there is in fact money available in the depreciation reserve and if that money is actually used during the year as working capital, a return should not be allowed on such money also.
Further if the money has been converted into such assets as stock in trade and stores etc.
, (i.e., other than capital or fixed assets), it will be obviously available from year to year to that extent as working capital subject to adjustments on account of loans, secured or otherwise.
Learned counsel for the respondents wanted to contest that the whole amount in the depreciation reserve was not available for being used as working capital.
It is enough to say that the 11 affidavit of the Chief Accountant filed on behalf of the company was not challenged before the Industrial Tribunal on behalf of the respondents.
It would, therefore, be impossible for us now to over look that affidavit, particularly when the Tribunal gave no reason why it treated the working capital as Rs. 31.88 lacs only.
So far therefore as the present year is concerned, we must accept the affidavit and hold that the working capital was Rs. 139.09 lacs.
It will, however, be open to the workmen in future to show by proper cross examination of the company 's witnesses or by proper evidence that the amount shown as the depreciation reserve was not available in whole or in part to be used as working capital and that whatever may be available was not in fact so used in the sense explained above.
In the present appeal, however, we must accept the affidavit of the Chief Accountant.
The Tribunal allowed 4 per centum interest on the working capital and that must be allowed on the total sum of Rs. 139 09 lacs.
We now come to the calculations in accordance with the Full Bench formula, subject to what we have said above: Rs. in lacs Rs. in lacs Profit for the year.
15 53 Add provision for (i) tax. 14 51 (ii) depreciation 119 75 (iii) bonus. 7 76 34 02 Gross Profits.
49 55 Less extraneous income 3 80 Balance. 45 75 Less notional normal depreciation 11 12 Balance. 34 63 Less income tax payable according to Meenakshi Mills case (1) (Per Note A Below). 15 90 Balance. 18 73 12 Rs. in lacs Rs. in lacs Less dividend on paid up 5 54 capital Less return on Reserves used 5 56 as working capital of Rs. 139 09 @ Rs. 4 per cent.
11 10 Available surplus 7 63 Less bonus actually paid 7 90 Less rebate of income tax at 3 40 /7/ in the rupee. 4 50 Amount remaining with the Company. . 3 13 Note A. Rs. in lacs Gross Profits 49 55 Less total statutory depreciation 13 19 Balance. 36 36 Income tax at /7/ in 15 90 a rupee The available surplus of profit thus works out at Rs. 7 63 lacs.
The company has, already paid 2 1/2 months ' bonus amounting to Rs. 7 90 lacs to the workmen.
The company would be entitled to a rebate of Rs. 3 40 lacs on this sum and therefore the amount which the company has actually to pay is Rs. 4 50 lacs.
This will leave a sum of Rs. 3 13 lacs out of the available surplus with the company for its use.
It will be seen that more than half the available surplus has already gone to labour according to what the company has paid.
There are three sharers in the available surplus, namely, the industry, share holders and labour.
In the circumstances no case has been made out for increasing the profit bonus beyond what the company has already paid, particularly when we find that the company has claimed no rehabilitation charges in this year.
We, therefore, allow the appeal, set aside the order of the Industrial Tribunal and dismiss the claim of the workmen for any bonus 13 beyond what has already been granted by the company.
In the particular circumstances of this case, we order the parties to bear their own costs.
Appeal allowed.

Output:
In resisting the workmen 's claim for bonus for the year 1955 56 the appellant contended that in calculating gross profits for the purpose of the Full Bench formula the following items of income should be excluded : (i) Income earned by way of rent, light and power; (ii) estate revenue derived from sale of excess coconuts used in preparing oil grown in the appellant 's groves; (iii) profit from sale of empty barrels; and (iv) sale proceeds of tin cans, scraps, logs, planks, gunnies etc.
as they were extraneous income unrelated to the efforts of the workmen.
The appellant also claimed that a profit of Rs. 3 lacs appearing in the accounts due to a change in the method of valuation was no real profit due to the efforts of labour and should not be taken into account.
In calculating the available surplus the appellant claimed that it was entitled to 4% interest on the depreciation reserve used as working capital.
Held, that the four items were earned by the appellant in the normal course of its business and could no be excluded from the gross profits on the ground that it had not been proved that they were the result of the direct efforts of labour in the bonus year.
Though there must be contribution of the workmen in earning profits before they could be entitled to profit bonus, it was not necessary to establish direct connection between the efforts of the workmen and each item of profit earned.
Profits earned in the normal course of business were generally the result of the joint effort of capital and labour.
Income or profit may be extraneous if it either did not really arise in that year or it arose out of fortuitous circumstances altogether unconnected with the efforts of labour or arose out of sale of fixed or capital assets.
2 Mill Owners Association, Bombay vs The Rashtriya Mill Mazdoor Sangh, Bombay, , Shalimar Rope Works Mazdoor Union Howrah vs Shalimar Rope Works Ltd., Howrah, , referred to.
The profit of Rs. 3 lacs due to change in the method of accounting was extraneous income and had to be excluded.
It was not income in the normal course of business as it was not likely.
to arise again.
It had arisen out of fortuitous circumstances and had nothing whatsoever to do with the efforts of labour.
The appellant was entitled to a 4% return on the deprecia tion reserves used as working capital.
If reserves were not used for this purpose the concern would have to borrow money and pay interest thereon.


Input:
Appeal No. 53 of 1969.
Appeal by special leave from the judgment and decree dated November 1, 1968 of the Rajasthan High Court in Civil Regular Second Appeal No. 487 of 1962.
C. B. Agarwala, Rameshwar Nath and Mahinder Narain, for the appellant.
B. R. L. Iyengar, section K. Mehta and K. L. Mehta, for the respondents.
The Judgment of the Court was, delivered by Bachawat, J.
This appeal arises out of a suit for ejectment by a landlord against a tenant.
The defendant is the tenant of six shops belonging to Thakurji Shri Shri Dwarkadheeshji installed in the temple at Chaura Raasta, Jaipur.
Devendra Prasad is the adhikari or manager of the temple.
He gave a notice to the defendant to quit the shop on August 1, 1957.
On February 28, 1958, the deity and Devendra Prasad filed a suit against the defendant claiming recovery of possession of the six shops and Rs. 1,006/ on account of arrears of rent.
The suit was governed by the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. XVII of 1950).
The plaintiffs asked for ejectment of the defendant on the ground that he had sublet the six shops.
The other grounds of ejectment were not established, and it is not necessary to mention them.
The courts below concurrently found that Devendra Prasad as ' the adhikari of the temple was entitled to give the notice to quit and to maintain the suit.
The trial court hold that (1) all the six shops were sub let by the defendant; (2) the sub leting was with the permission of 991 the landlord and (3) the notice to quit was waived by acceptance of rent subsequently accrued due.
Accordingly, the trial court dismissed the suit so far as it claimed ejectment and passed a decree for Rs. 1,006 on account arrears of rent.
The plaintiff filed an appeal against the decree.
The District Judge, Jaipur City, dismissed the appeal.
The plaintiffs filed a second appeal against the decree.
The High Court held that (1) there was on integrated tenancy of all the six shops; (2) four shops were sub let with the permission of the landlord; (3) two shops were sub let without the permission of the landlord towards the end of 1947; (4) the tenant having sub let a part of the premises without the permission of the landlord the ground of eviction under clause (e) of section 13(1) was made out and the landlord was entitled to a decree for possession of all the six shops and (5) there was no waiver of the notice to quit.
Accordingly, the High Court allowed the appeal and passed a decree for eviction of the defendant from the six shops.
The present appeal has been field by the defendant after obtaining special leave.
Counsel for the appellant conceded that there was no waiver of the notice to quit by acceptance of rent or otherwise.
The points arising 'for determination in this appeal are : (1) was there one integrated tenancy of all the six shops ? (2) were the two sub let without the permission of the landlord towards the end of 1947 ? and (3) is the sub letting a ground of ejectment under clause (e) of section 13 (1) of the Rent Act ? As to the first question, we find that four shops were let to the defendant in 1944 and the other two shops on the northern side of the staircase of the temple were let to him in 1945.
The rent of the four shops was Rs. 1501 per month.
The rent of the other two shops was Rs. 65/ per month.
In paragraph 5 of the plaint it was pleaded that in 1953 the defendant agreed to pay a consolidated rent of Rs. 251/8/ per month for all the six shops and to vacate them by July 31, 1957.
In paragraph 5 of the written statement the defendant denied this contract and alleged that in 1953 there was only an enhancement of rent.
The first two courts found that in 1953 there was no new contract of tenancy, that there was only an increase of rent and that the other terms and conditions of the tenancy remained unaltered.
This finding was not vitiated by any error of law.
A mere increase or reduction of rent does not necessarily import the surrender of the existing lease and the grant of a new tenancy.
As stated in Hill and Redman 's Law of Landlord and Tenant, 14th ed., article 385, p. 493 : "But a surrender does not follow from a mere agreement made during the tenancy for the reduction 992 or increase of rent, unless there is some special reason to inter a new tenancy, where for instance, the parties make the change in the rent in the belief that tile old tenancy is at an end.
" In the present case the first two courts on a review of the entire evidence came to the conclusion that the increase of rent did not import a new demise.
This finding of fact was binding on the High Court in second appeal.
The High Court was in error in holding that there was one, integrated tenancy of the six shops.
As to the second question the defendant denied that he sub let the two shops.
The courts below concurrently found that this denial was false and that he sub let the two shops to his brotherin law Ram Gopal.
There was no pleading nor any issue that the sub letting of the two shops was made with the permission of the landlord.
It was not the case of the defendant at any stage of the trial that he had obtained the permission of the landlord for sub letting the two shops.
In the absence of any pleading and any issue on his joint the first two courts were in error in holding that the two shops were sub let with the permission of the landlord.
The permission of the landlord for the sub letting is not established from the mere fact that the landlord realised rent after the sub letting in the absence of proof hat the landlord had then clear knowledge of the sub lease.
The date of the sub letting of the two shops is not mentioned in the plaint.
In the absence of any pleading and any issue on his question the High Court 'was in error in recording the finding that the two shops were sub let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force.
We can only say that the sub letting was sometime after 1945.
As to the third question : section 13(1) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 provides : "Notwithstanding anything contained in any law or contract, no Court shall pass any decree, or make any order, in favour of a landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extent allowable by this Act, unless it is satisfied " The sub section then sets out several grounds of ejectment under twelve main heads.
Clause (e) mentions the following ground : " that the tenant has assigned, sub let or otherwise parted with the possession of, the whole or any part of the promises without the permission of the landlord.
" 993 The appellant 's contention is that sub letting before the Act came into force is not within the purview of clause (e).
The High Court held that the two shops were sub let after October 15, 1947 when the Jaipur Rent Control Order, 1947 came into force, that the sub letting was a ground of ejectment under paragraph 8 ( 1 ) (b) (ii) of that Order and that the tenant 's liability for eviction on this ground continued after the promulgation of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950.
With regard to this line of reasoning it is sufficient to say that the plaintiffs have not established that the sub letting was after October 15, 1947.
The case must be decided on the footing that on the date of the sub letting, no Rent Control legislation was in force.
The question whether a subletting before the coming into force of the Act is within the purview of clause (e) of section 13(1) depends upon the construction of that clause.
The relevant words are "has sub let".
The present perfect tense contemplates a completed event connected in some way with the present time.
The words take within their sweep any sub letting which was made in the past and has continued up to the present time.
It does not matter that the sub letting was either before or after the Act came into force.
All such sub lettings are within the purview of clause (e).
Sections 26 and 27(1) of the Act throw considerable light on the construction of section 13(1).
They are as follows : "26.
No decree for the eviction of a tenant from any premises in areas to which this Act extends for the time being, passed before the date of commencement of this Act shall in so far as it relates to the eviction of such tenant be executed against him, as long as this Act, remains in force therein, except on any of the grounds mentioned in section 13 and under the circumstances specified in this Act.
27(1) In all suits for eviction of tenants from any premises in areas to which this Act has been extended undersection 2, pending on the date specified in the notification under that section, no decree for eviction shall be passed except on one or more of the grounds mentioned in section 13 and under the circum stances specified in this Act.
" Section 26 bars the execution of a decree for eviction passed before the commencement of the Act except on any of the grounds mentioned in section 13 and under the circumstances specified in the Act.
Likewise, section 27(1) bars the passing of a decree for eviction in a pending suit except on one or more of the grounds under 994 section 13 and under the circumstances specified in the Act.
Sections ' 26 and 27(1) clearly contemplate that the grounds of eviction mentioned in section 13 may have arisen before the Act came into force.
The argument that section 1 3 ( 1 ) (e) takes away vested rights and should not be given a retrospective effect is based on fallacious assumptions.
Apart from the Rent Act the landlord is entitled to eject the tenant on the expiry of the period mentioned in the notice to quit.
Section 13(1) protects the tenant from eviction except in certain specified cases.
If one of the grounds of ejectment is made out the tenant does not qualify for,protection from eviction.
We find no reason for presuming that section 13 (1) (e) is not intended to apply to sub lettings before the Act came into force.
If the "tenant has sub let" the premises without the permission of the landlord either before or after the coming into force of the Act, he is not protected from eviction under section 13 ( 1 ) (e), and it matters not that he had the right to sub let the premises under section 108(j) of the Transfer of Property Act.
The plaintiffs have thus established the ground of eviction under section 1 3 (1 ) (e) with regard to the two shops on the northern side of the staircase of the temple.
With regard to the four other shops the courts below concurrently found that they were sublet with the permission of the land lord.
In our opinion, the plaintiffs are entitled to a decree for ejectment of the defendant from the two shops and the claim for eviction from the other four shops should be dismissed.
In the result, the appeal is allowed in part.
The decree passed by the High Court for eviction of the defendant from the four shops is set aside and the suit in so far as it claims eviction from the four shops is dismissed.
The decree passed by the High Court for eviction of the defendant from the other two shops on the northern side of the staircase of the temple mentioned in paragraph 4 of the plaint is affirmed.
Parties will pay and bear their own costs throughout, in this Court and in all the courts below.
The defendant will have one month 's time to vacate the two shops.
Y.P. Appeal allowed in part.

Output:
The respondent landlord let out to the appellant four shops and later one let out to him two more shops.
The respondent filed a suit alleging that subsequent to the letting of the shops, by a contract, the rent was consolidated and increased and that the shops were sub let by the appellant, so the appellant be ejected from all the six shops under section 13 (1) (e) of the Rajasthan Premises (Control of Rent and Eviction) Act.
The appellant denied the contract and denied the subletting altogether.
The trial court dismissed the suit, and the first appellate court affirmed the decree.
Both these courts concurrently found that new contract of tenancy was not created, it was only an increase of rent, the other terms of the tenancy remained unaltered, and that the two shops were sub let but with the permission of the landlord.
The High Court, in second appeal, reversed the decree of the courts below, and held that there was one integrated tenancy of all the shops, that the four shops were sub let with the permission of the landlord, but the later two were sub let without permission, and that having sub let a part of the premises without the permission, the decree for possession of all the shops must be passed.
appeal to this Court, the appellant tenant contended that (i) the tenancy of all the six shops were not one integrated; (ii) two shops were not sublet without the permission of the landlord; and (iii) the sub letting was before the Jaipur Rent Control Order, 1947 came into force, which was repealed and continued by the promulgation of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, and therefore ejectment could not be claimed under section 13(1) (e) of the Act.
HELD : The appellant could not be ejected from four shops, but ought to be ejected from the two shops.
(i) A mere increase or reduction of rent does not necessarily import the surrender of the existing lease and the grant of a new tenancy.
In the present case the first two courts on a review of the entire evidence came to the conclusion that the increase of rent did not import a new demise.
This finding of fact was binding on the High Court in second appeal and it erred in holding that there was one integrated tenancy of the six shops.
[991 H 992 B] (ii) In the absence of any pleading and any issue on the question of sub letting, the first two courts were in error in holding that the two shops were sub let with the permission of the landlord.
The permission of the landlord for the sub letting cannot be established from the mere fact that the landlord realised rent after the sub letting in the absence of proof that the landlord had then clear knowledge of the sub lease.
[992 D] The date of the sub letting of the two shops is not mentioned in the plaint.
In the absence of any pleading and any issue on this question the 990 High Court was error in recording the finding that the two shops were sub let towards the end of 1947 after the Jaipur Rent Control Order 1947 came into force.
It can only be said that the sub letting was sometime after 1945.
[992 E] (iii) Section 13(1)(e) of the Act was intended to apply to sub letting before the Act came into force.
If the tenant had sub let the premises without the permission of the landlord either before or after the coming into force of the 'Act, he was not protected from eviction under section 13(1) (e), and it matters not that he had the right to sub let the premises under section 108(j) of the Transfer of Property Act.
The present perfect tense, by words "has sub let" in section 13(1)(e) of the Act contemplates a completed event connected in some way with the present time.
The words take within their sweep any sub letting which was made in the part and has continued up to the present time.
It did not matter that the subletting was either before or after the Act came into force.
Further sections 26 and 27(1) of the Act contemplated that grounds of eviction mentioned in section 13 may have arisen before the Act came into force.
[993 D 994 A]