Input:
il Appeals Nos. 213A and 213B of 1953.
Appeals by Special Leave against the Judgment and Order dated the 24th June, 1953, of the Election Tribunal, Ludhiana, in Election Petition No. 153 of 1952.
C. K. Daphtary, Solicitor General for India, (Harbans Singh Doabia and Rajinder Narain, with him) for the appellant in Civil Appeal No. 213A. Tilak Raj Bhasin and Harbans Singh for respondent No. 2 in Civil Appeal No. 213A and the appellant in Civil Appeal No. 213B. Naunit Lal for respondents Nos. 3 and 19 in both the appeals.
May 21.
The Judgment of the Court was delivered by BOSE J.
These are two appeals against the decision of the Election Tribunal at Ludhiana.
The contest was for two seats in the Pun jab Legislative Assembly.
The constituency is a double member constituency, one seat being general and the other reserved for a Scheduled Caste.
The first respondent is Atma Ram.
He was a candidate for the reserved seat but his nomination was rejected by the Returning Officer at the scrutiny stage and so he was unable to contest the election.
The successful candidates were Rattan Anmol Singh, the appellant in Civil Appeal No. 213 A of 1953, for the general seat and Ram Prakash, the appellant in Civil Appeal No. 213 B of 1953 for there served.
Atma Ram filed the present election petition.
The Election :Tribunal decided in 483 his favour by a majority of two to one and declared the whole election void.
Rattan Anmol Singh and Ram Prakash appeal here.
The main question we have to decide is whether the Returning Officer was right in rejecting the petitioner 's nomination papers.
The facts which led him to do so are as follows.
The Rules require that each nomination paper should be "subscribed" by a proposer and a seconder.
The petitioner put in four papers.
In each case, the proposer and seconder were illiterate and so placed a thumb mark instead of a signature.
But these thumb marks were not "attested".
The Returning Officer held that without "attestation" they are invalid and so rejected them.
The main question is whether he was right in so holding.
A subsidiary question also arises, namely, whether, assuming attestation to be necessary under the Rules, an omission to obtain the required attestation ' amounts to a technical defect of an unsubstantial character which the Returning Officer was bound to disregard under section 36(4) of the Representation of the People Act, 1951 (XLIII of 1951).
Section 33(1) of the Act requires each candidate to "deliver to the Returning Officer. a nomination paper completed in the prescribed form and subscribed by the candidate himself as assenting to the nomination and by two persons referred to in sub section (2) as proposer and seconder.
" Sub section (2) says that "any person whose name is registered etc. may subscribe as proposer or seconder as many nomination papers as there are vacancies to be filled. .
The controversy centers on the word "subscribed" which has not been defined in the Act.
The prescribed nomination form referred to in subsection (1) of section 33 is to be found in Schedule II.
In this form we have the following: "9.
Name of the proposer 12.
Signature of the proposer 484 13.
Name of the seconder. . . . . . 16.
Signature of the seconder.
" The Oxford English Dictionary sets out thirteen shades of meaning to the word ',subscribe", most of them either obsolete or now rarely used.
The only two which can have any real relation to the present matter are the following: 1. "To write (one 's name or mark) on, originally at the bottom of a document, especially as a witness or contesting party; to sign one 's name to.
" This meaning is described as "rare." 2. "To sign one 's name to; to signify assent or adhesion to by signing one 's name; to attest by signing." This appears to be its modern meaning, and is also one of the meanings given to the word "sign", namely "to attest or confirm by adding one 's signature; to affix one 's name to (a document) late." One also finds the following in Stroud 's Judicial Dictionary, 3rd edition: "Subscribe.
(1) 'Subscribe ' means to write under something in accordance with prescribed regulations where any such exist But though this is the strict primary meaning of the word, it may sometimes, e.g., in the attestation of a will, be construed as 'to give assent to, or to attest ' or 'written upon "(3) 'Subscription is a method of signing; it is not the only method '; a stamped, or other mechanical impression of a signature is good, in the case of electioneering papers. " It is clear that the word can be used in various senses to indicate different modes of signing and that it includes the placing of a mark.
The General Clauses Act also says that " 'sign ' with reference to a person who is unable to write his name, includes 'mark ' But this is subject to there being nothing repugnant in the subject or context of the Act.
In our opinion, the crux of the matter lies there.
We have to see 485 from the Act itself whether "sign" and "subscribe" mean the same thing and whether they can be taken to include the placing of a mark.
The majority decision of the Tribunal holds that "sign" and "subscribe" are not used in the same sense in the Act because a special meaning has been given to the word I sign" and none to the word "subscribe", therefore, we must use "subscribe" in its ordinary meaning; and its ordinary meaning is to "sign" but not to "sign" in the special way prescribed by the Act but in the ordinary way; therefore we must look to the General Clauses Act for its ordinary meaning and that shows that when it is used in its ordinary sense it includes the making of a mark.
We agree with the learned Chairman of the Tribunal that this is fallacious reasoning.
The General Clauses Act does not define the word "subscribe" any more than the Representation of the People Act, and if it is improper to exclude the special meaning given to " sign " in the Representation of the People Act because the word "sign " is defined and not " subscribe," it is equally improper to import the special definition of " sign " in the General Clauses Act because that also defines only "sign" and not "subscribe" and also because the " subject " and " context " of the Representation of the People Act show that the writing of a signature and the making of a mark are to be treated differently.
The learned counsel for the respondent analysed the Act for us and pointed out that the word " subscribe " is only used in Chapter I of Part V dealing with the Nomination of Candidates while in every other place the word " sign " is used.
We do not know why this should be unless, as was suggested by the learned Solicitor General, the Legislature wished to underline the fact that the proposer and seconder are not merely signing by way of attesting the candidate 's signature to the nomination form but are actually themselves putting the man forward as a suitable candidate for election and as a person for whom they are prepared to vouch, also that the candidate 's signature imports more than a mere vouching for the accuracy of the 486 facts entered in the form.
It imports assent to his nomination.
We think the learned Solicitor General is probably right because section 33 speaks of "a nomination paper completed in the prescribed form and subscribed by the. candidate himself as assenting to the nomination." But however that may be, it.is evident from the form that " signatures are required.
It is also evident from the definition of sign " that the Legislature attached special importance to the fact that in the case of illiterate persons unable to write their names it is necessary to guard against misrepresentation and fraud by requiring that their signatures should be formally authenticated in a particular way.
A special statutory cloak of protection is thrown around them just as the ordinary law clothes pardanish in women and illiterate and ignorant persons and others likely to be imposed on, with special protective covering.
Now it is to be observed that section 2 calls itself an interpretation " section.
It says " (1) In this Act, unless the context otherwise requires. . . . . . . . . (k) 'sign ' in relation to a person who is unable to write his name means authenticate in such manner as may be prescribed.
" It is evident then that wherever the, element of signing " has to be incorporated into any provision of the Act it must be construed in the sense set out above.
Therefore, whether " subscribe " is a synonym for " sign " or whether it means " sign " plus something else, namely a particular assent, the element of " signing " has to be present: the schedule places that beyond doubt because it requires certain " signature*.
" We are consequently of opinion that the " signing," whenever a " signature " is necessary, must be in strict accordance with the requirements of the Act and that where the signature cannot be written it must be authorised in the manner prescribed by the Rules.
Whether this attaches exaggerated importance to the authorisation is not for us to decide.
What is beyond 487 dispute is that this is regarded as a matter of special moment and that special provision has been made to meet such cases.
We are therefore bound to give full affect to this policy.
Now if " subscribe " can mean both signing, so called,, and the placing of a mark (and it is clear the word can be used in both senses), then we feel that we must give effect to the general policy of the Act by drawing the same distinction between signing, and the making of a mark as the Act itself does in the definition of "sign.
" it is true the word "subscribe" is not defined but it is equally clear, when the Act is read as ' a whole along with the form in the second schedule, that "subscribe" can only be used in the sense of making a signature and as the Act tells us quite clearly how the different types of " signature " are to be made, we are bound to give effect, to ft.
In the case of a person who is unable to write his name his " signature " must be authenticated in " such manner as may be pres cribed.
" The prescribed manner is to be found in rule 2(2)of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951.
It runs as follows : " For the purposes of the Act or these rules,, a person who is unable to write his name shall, unless otherwise expressly provided in these rules, be deemed to have signed an instrument or other paper if he has, placed a mark on such instrument or other paper in the presence of the Returning Officer or the presiding officer or such other officer as may be specified in this behalf by the Election Commission and such officer on being satisfied as to his identity has attested the mark as being the mark of such person.
" In view of this we are clear that attestation in the prescribed manner is required in the case of proposers and seconders who are not able to write their names.
The four nomination papers we are concerned with were not " signed " by the proposers and seconders in the usual way by writing their names, and as their marks are not attested it is evident that they have not been " signed ", in the special way which the Act 488 requires in such cases.
If they are not " signed " either in one way or the other, then it is clear that they have not been " subscribed " because " subscribing " imports a "signature" and as the Act sets out the only kinds of "signatures" which it will recognise as II signing" for the purposes of the Act, we are left with the position that there are no valid signatures of either a proposer or a seconder in any one of the four nomination papers.
The Returning Officer was therefore bound to reject them under section 36(2)(d) of the Act because there was a failure to comply with section 33, unless he could and should have had resort to section 36(4).
That sub section is as follows.
The Returning Officer shall not reject any nomination paper on the ground of any technical defect which is not of a substantial character.
" The question therefore is whether attestation is a mere technical or unsubstantial requirement.
We are not able to regard it in that light.
When the law enjoins the observance of a particular formality it cannot be disregarded and the substance of the thing must be there.
The substance of the matter here is the satisfaction of the Returning Officer at a particular moment of time about the identity of the person making _a mark in place of writing a signature.
If the Returning Officer had omitted the attestation because of some slip on his part and it could be proved that he was satisfied at the proper time, the matter might be different because the element of his satisfaction at the proper time, which is of the substance, would be there, and the omission formally to record the satisfaction could probably, in a case like that, be regarded as an unsubstantial technicality.
But we find it impossible to say that when the law requires the satisfaction of a particular officer at a particular time his satisfaction can be dispensed with altogether.
In our opinion, this provision is as necessary and as substantial as attestation in the cases of a will or a mortgage and is on the same footing as the II subscribing " required in the case of the candidate himself If there is no signature and no mark the form would have to be rejected and their 489 absence could not be dismissed as technical and unsubs tantial.
The "satisfaction " of the Returning Officer which the rules require is not, in our opinion, any the, less important and imperative.
The next question is whether the attestation can be compelled by the persons concerned at the scrutiny stage.
It must be accepted that no attempt was made at the presentation stage to satisfy the Returning Officer about the identity of these persons but evidence was led to show that this was attempted at the scrutiny stage.
The Returning Officer denies this, but even if the identities could have been proved to his satisfaction at that stage it would have been too late because the attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated any more than the omission of a candidate to sign at all could have been.
Section 36 is mandatory and enjoins the Returning Officer to refuse any nomination when there has been " any failure to comply with any of the provisions of section 33. . .
The only jurisdiction the Return ing Officer has at the scrutiny stage is to see, whether the nominations are in order and to hear and decide objections.
He cannot at that stage remedy essential defects or permit them to be remedied.
It is true he is not to reject any nomination paper on the ground of any technical defect which is not of a substantial character but he cannot remedy the defect.
He must leave it as it is.
If it is technical and unsubstantial it will not matter.
If it is not, it cannot be set right.
We agree with the Chairman of the Election Tribunal, that the Returning Officer rightly rejected these nomination papers.
The appeals are allowed with costs and the order of the Election Tribunal declaring the elections of the two successful candidates to be wholly void is set aside.
The election petition is dismissed, also with costs.

Output:
Under section 33(1) of the Representation of the People Act, 1951, each nomination paper should be "subscribed" by a proposer and a seconder.
Where the proposer and the seconder of a nomination paper (as in the present case) are illiterate and so place thumb marks instead of signatures and those thumb marks are not attested, the nomination paper is invalid as attestation in the prescribed manner in such a case is necessary because of rule 2(2) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, which requires it.
Signing, whenever signature is necessary, must be in strict accordance with the requirements of the Act and where the signature cannot be written it must be authorised in the manner prescribed by the Rules.
62 482 Attestation is not a more technical or unsubstantial requirement within the meaning of section 36(4) of the Act and cannot be dispensed with.
The attestation and the satisfaction must exist at the presentation stage and a total omission of such an essential feature cannot be subsequently validated at the scrutiny stage any more than the omission of a candidate to sign at all could have been.
Section 36 of the Act is mandatory and enjoins the Returning officer to refuse any nomination when there has been "any failure to comply with any of the provisions of section 33."


Input:
Appeal No. 205 of 1964.
Appeal by special leave from the judgment and decree dated November 30, 1961 of the Orissa High Court in First Appeal No. 63 of 1957.
A. K. Sen and P. K. Chatterjee, for the appellant.
Niren de, Addl.
Solicitor General, Dipak Datta Chaudhuri and R. N. Sachthey, for respondent No. 2.
The Judgment of the Court was delivered by Raghubar Dayal, J.
This appeal, by special leave, is against the judgment and decree of the Orissa High Court, confirming the judgment and decree of the Additional Subordinate Judge, Puri dismissing the suit instituted by Mahant Gadadhar Ramanuj Das, represented after his death by Mahant Srinivas Ramanuj Das, for the setting aside of the decision of the Commissioner of Endowments dated July 20, 1946, under section 64(1) of the Orissa Hindu Religious Endowments Act, 1939 (Act 4 of 1939), hereinafter called the Act, and for a declaration that the Act did not apply to the properties described in Schedules Ka, Kha and Ga of the plaint.
The allegations in the plaint are as, follows.
The premises on which the residential quarters of the plaintiff existed was said to 438 be popularly known as (i) Srinivas Kote; (ii) Rajagopal Math; and (iii) Emar Math, according to.
the names of the different ancestors of the plaintiff, Srinivasachari, Rajagopalachari and Embarachari.
It was alleged that these premises, though known as Emar Math, was not a 'math ' as defined in the Act.
Embarachari and his ancestors were alleged to be grahasts.
His successors to the Emar Math were celibate.
Srinivasachari was the grand father of Embarachari.
It is alleged that he acquired a portion of the present site of the plaintiff 's residential quarters and built his residence there and installed therein his family deity Sri Raghunathji for his own spiritual benefit and the spiritual benefit of his family members and that Embarachari acquired a large Plot of land adjacent to Srinivas Math as an absolute gift and constructed buildings thereon.
The buildings therefore became popularly known as Emar Math, although Embarachari was a married man and was living there with his wife and children with the private deity Sri Raghunathji.
The plaintiff alleged that the properties described in Schedule Ka of the plaint were his personal properties, those in Schedule Ka 1 as acquired through absolute gifts to the plaintiff or his ancestors and those in Ka 2 as gifted to or purchased by the plaintiff or his predecessors and that they were wrongly recorded in the settlement papers in the name of the plaintiff as marfatdar of Lord Jagannath.
The properties in Schedule Kha are alleged to be Amrit Manohi properties of Lord Jagannath held by the plaintiff as marfatdar and to have been acquired either by purchase or 'krayadan ' or by way of gift subject to the charge of some offering to Lord Jagannath.
The properties in Schedule Ga were alleged to be owned and possessed by the plaintiff as marfatdar of various private deities.
It was alleged that none of the properties in these schedules was however dedicated to the public and that the public had no interest in or right to any of the properties.
The properties therefore did not constitute 'Public religious endowments ' within the meaning of the Act which, accordingly, could not apply to them.
The Commissioner of Hindu Religious Endowments, Orissa, hereinafter called the Commissioner.
demanded contribution under section 49 of the Act and took steps to enforce certain other provisions of the Act against the plaintiff and the properties in suit.
This led the plaintiff to formally ask for a decision under section 64(1) of the Act.
The Commissioner decided against him on July 20, 1946 and held that the Emar Math was a 'math ' as defined in the Act and that the properties constituted a 'religious endowment ' to which the Act applied.
Thereafter the plaintiff instituted this suit and prayed for the setting aside of the decision of the Commissioner and for a declaration that the Act did not apply to the properties in suit.
439 The Commissioner, defendant No. 2, contested the suit asserting that the properties in suit were public debonair properties and were public endowments to which the Act applied.
It was further contended that the premises of Emar Math was a 'math ' as defined in the Act and the public had a right to go there and had been actually going there from time immemorial.
The trial Court accepted the contentions of the defendant Commissioner and dismissed the suit.
The High Court, on appeal by the plaintiff, agreed with the findings of the trial Court and accordingly dismissed the appeal.
Two main contentions have been raised before us.
One is that the Emar Math in suit is not a public math and that therefore the Act does not apply to it.
The other is that the properties in Schedule Ka were the personal property of the appellant plaintiff and that the properties in schedules Kha and Ga were private debottar properties of the plaintiff.
Before dealing with the contentions, we may refer to the object and the relevant provisions of the Act.
The Act was enacted for the better administration and gover nance of certain Hindu Religious Endowments.
Section 2, sub section(a), states that the Act applies, save as thereinafter provided, to all Hindu public religious endowments which, according to the Explanation to that sub section, do not include Jain religious endowments. 'Math ' is defined in sub section(7) of section 6 as: " ' math ' means an institution for the promotion of the Hindu religion presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headships over a body of disciples and succession to whose office devolves in accordance with the directions of the founder of the institution or is regulated by usage; and includes places of religious worship other than a temple and also places of instruction or places for the maintenance of vidyarthies or places for rendering charitable or religious services in general which are or may be appurtenant to such institution.
" Sub section(10) of section 6 defines the expression 'person having interest ' to mean, in the case of a math, a disciple of the math or a person of the religious persuasion to which the math belongs.
Sub section(12) of section 6 defines 'religious endowment ' or 'endowment ' as meaning: "all property belonging to, or given or endowed for 'the support of maths or temples or for the performance of any service or charity connected therewith whether or not such maths or temples be in ruins or the worship in connection with them is discontinued either temporarily or permanently and includes the premises of maths or temples." 440
The explanation thereto reads: "Where an endowment has been made or property given for the support of an institution which is partly of a religious and partly of a secular character or for the performance of any service or charity connected therewith, or where an endowment made or property given is appropriated partly to religious and partly to secular uses, such endowment or property or the income therefrom shall be deemed to be a religious endowment and its administration shall be governed by the provisions of this Act." According to sub section (13) of section 6, 'temple ' is defined as follows: " 'temple ' means a place, by whatever designation known, used as a place of public religious worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community, or any section thereof, as a place of religious worship and also includes any cultural institution or mandab or library connected with such a place of public religious worship.
" General superintendence of all religious endowments vested in the Commissioner under section 11 of the Act.
Clause (b) of sub section (1) of section 12 requires the Commissioner to maintain a register for every math or temple and all title deeds and other documents relating thereto.
Sub section(2) provides that the register shall be prepared, verified and signed by the trustee of the math or temple or by his authorised agent and submitted by him to the Commissioner within such period after the commencement of the Act as the Commissioner may fix.
Sub section (3) authorises the Commissioner to make such enquiry as he may consider necessary and to direct that the register be approved with such alterations, omissions or additions as he thinks fit to order.
Section 13 requires the annual verification of the entries in this register.
Section 46 reads: "The trustee of a math or temple may, out of the funds of the endowments in his charge, after satisfying adequately the purposes of the endowments, incur expenditure on arrangements for securing the health, safety or convenience of disciples, pilg rims or worshippers resorting to such math or temple: Provided that the Commissioner may, for reasons to be setforth in writing, restrict and place under such control as he may think fit the exercise by the trustee of his discretion under this section.
" Section 49 provides that every math or temple and every specific endowment attached to a math or temple shall pay annually contributions at specified rates for meeting the expenses of the Commissioner when the annual income exceeds a specified amount.
441 Under section 51(1), the amount of contributions payable by a math under section 49 was to be assessed on and notified to the trustee of the math, temple or specified endowment concerned in the prescribed manner.
Section 64 reads: "(1) If any dispute arises as to whether an institution is a math or temple as defined in this Act or whether a temple is an excepted temple, such dispute shall be decided by the Commissioner.
(2)Any person affected by a decision under subsection (1) may, within one year, institute a suit in the Court to modify or set aside such decisions; but subject to the result of such suit, the order of the Commissioner shall be final.
" Before we deal with the contention about the Emar Math being not a public math, we may first consider what the Commis sioner had to do under section 64(1) of the Act.
The Commissioner had to decide under that sub section whether the Emar Math was a math as defined in the Act.
He held that it was and we have to see whether he was right in so doing.
An institution comes within such a definition if it satisfies three conditions: (i) that the institution be for the promotion of the Hindu religion; (ii) that it be presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual headship over a body of disciples; and (iii) that the office of such person devolves in accordance with the directions of the founder of the institution or is regulated by usage.
There is ample evidence on the record to show that the Emar Math was presided over by the Mahant, that the Mahant exercised spiritual headship over the disciples, and that the succession to the office of the Mahant was regulated by the usage of the institution.
There could be no question that such an institution must have been for the promotion of the Hindu religion.
It was for such an object that one would have a body of disciples.
It is in evidence that the Mahant used to preach and had a large number of disciples who were attracted by the high reputation the Mahant enjoyed.
It is said that Embarachari was regarded with great respect in his times and that it was on account of such respect that the gift of the land evidenced by the Deed, Exhibit 110, executed sometime is 1767, was made in his favour.
It is not disputed for the appellant that the institution is a math.
What is disputed is that it is not a public math as required by the Act.
The premises of the Emar Math constituted a religious endowment, which includes the premises of maths or temples.
442 Further, if the premises of the Emar Math had been used both for secular purposes and for religious purposes, it, according to the explanation to sub section
This makes it clear that the premises of the Math is not only deemed to be a religious endowment, but is deemed to be a Hindu public religious endowment to which the Act applies, as the provisions of the Act govern its administration.
It follows that an institution which comes within the definition of 'math ' under the Act, ipso facto comes within the expression 'Hindu public religious endowment ' and therefore becomes subject to the provisions of the Act.
In this connection, reference may be made to the definition of 'temple '.
While the definition of 'temple ' requires that the place would be a temple if it be used as a place of public religious worship, there is no requirement that an institution to be a math must be a public institution for the promotion of the Hindu religion.
The use of the word 'public ' was not necessary in connection with an institution for the promotion of the Hindu religion as any institution for such promotion of the Hindu religion must be of a public nature; the object being to promote Hindu religion, there would be no point in shutting the benefit of the institution to anyone among the Hindus.
The beneficiaries of a math are the members of the fraternity to which the math belongs and the persons of the faith to which the spiritual head of the math belongs, and constitute therefore at least a section of the public.
Maths, in general, consequently, are public maths.
We say nothing as to whether there can be a private math or not.
Mukherje a states at p. 390, in his 'Law of Endowment ', 1st Edition: "By private math should be meant those institutions where the head or superior holds the property not on behalf of an indeterminate class of persons or a section of the public but for a determinate body of individuals, viz., the family or descendants of the grantor.
" In the present case, there is no evidence as to who actually founded the Math by granting the property to the spiritual preceptor.
However, there is no evidence, whoever the founder be, that any particular family is the only body of persons who is interested in the Math.
The spiritual family of the preceptor consisting of his disciples and the disciples in succession, cannot be deemed to be such a private family for whose benefit 443 the Math is founded and on that account the Math be called a private Math.
The body of disciples and the disciples ' disciples etc., is a very unascertainable body.
The Emar Math is therefore not such a private math.
Much has been said on either side with respect to the onus in connection with the Math being public or not.
Onus loses its importance when the parties have led evidence sufficient to determine the matter ' in dispute.
The High Court agreed with the trial Court that the onus was on the plaintiff appellant to establish that the institution was the private property of the Mahant.
It is said in para 10 of its judgment that the initial burden of showing that the Commissioner 's decision was wrong was on the plaintiff and that apart from the appellant 's position as plaintiff he had a heavy burden to establish affirmatively that the institution was the private property of the Mahant.
Reliance is placed on several cases of which reference may be made to Parma Nand vs Nihal Chand(1) in which the Privy Council approved of the view of the High Court that it was for the defendants to prove that the plaintiff who was admittedly in possession of the property held it on a trust created for a public purpose of a charitable and religious nature.
Narain Das then instituted the suit which ultimately went to the Privy Council.
Section 5(3), the Charitable and Religious Trusts Act, 1920 (Act 14 of 1920) provides for the stay of proceedings before the Judge under section 3 of that Act, in order that the person denying the public nature of the trust may institute a suit for a declaration that the property was not trust property.
There was no decision of any binding nature by the Court or by any authority which was to be avoided by the plaintiff instituting a suit for a declaration that the property was not trust property.
In the present case the suit was instituted in pursuance of section 64(2) of the Act which provides that any person affected by a decision under its sub section
(1) may, within one year, institute a suit in the Court to modify or set aside such decision and that, subject to the result of such a suit, the order of the Commissioner shall be final.
The plaintiff appellant instituted this suit for the setting aside of the order of the Commissioner under sub section
(1) of section 64 holding the institution to be a 'math ' as defined in the Act and the property belonging to it endowed properties.
This order of the Commissioner is final, subject to the result of the suit.
The plaintiff has to get over it to avoid that decision.
The onus is therefore initially on the plaintiff to show that the (1) L.R. 65 I.A. 252.
444 order of the Commissioner is wrong and this he can only show by establishing prima facie that the Math is not a math as defined in the Act and that the various properties were not endowed properties.
Learned counsel for the parties have argued on the basis that The Act applies to public maths.
It is urged for the appellant that it is not proved to be a public math, while the respondent contends to the contrary.
Undoubtedly, the Math had been in existence for over two centuries.
Oral evidence about the founding of the Math could not be possible after such a long period.
The mahant of the Math has not come in the witness box.
The Courts below have held the Math to be a public math on the basis of several considerations.
These are that the Mahants had been celibate and therefore not likely to have personal ownership in the property including even the dakshinas or cash offered to them, by disciples or other devotees.
Religious books, viz. the Bhagavad Gita and the Ramayan, are recited daily in the temple of Raghunathji.
There was also the image of Ramanuj, the founder of the cult.
This image is carried in procession for five days around the compound of the main temple of Lord Jagannath at Puri.
This could be to provide darshan to the devotees of the Vaishnav faith.
Some ascetics called babajis reside at the math and are fed by the math authorities.
The buildings of the math are many, much beyond the requirements of the Mahant and the few resident disciples.
The Mahants of this Math have the privilege of rendering service to Lord Jagannath both in the temple and in the Gundicha Mandir.
They also manage the Amrit Manchi properties the proceeds from which are utilised for offering bhog to Lord Jagannath and the Maha Prasad therefrom is distributed to the poor pilgrims and the Vaishnav visitors.
Apart from these considerations, certain documents relied upon by the High Court tend to favour the finding that Emar Math is a public math and that the various properties, though ostensibly acquired by the Mahants, were really acquired for the Math.
The first document of importance in this respect is Exhibit 110 of 1767.
It is a deed of gift by a private person in favour of Sadhu Emar Gosain, the Adhikari of Ramanuj Kote Math.
P.W. 2 states that Ramanuj Kote belongs to Emar Math area.
The plaint alleges that the premises in suit had been known by different names.
The gift deed states that the donee will enjoy the property gifted in perpetuity.
The idea of perpetuity is further emphasised when it is said in the gift deed: "Your Chelas, Sishyas and Anusisllyas shall all enjoy this property for ever in perpetuity until the sun and moon last."
This stipulation shows that it was not a gift personally to Emar, that the gift was for the benefit of chelas, sishyas and anusisllyas and that it was in favour of persons indeterminate in number.
The 445 fact that the chelas are distinguished from sishyas and anusisllyas shows that the chela is the nominee of the Guru for the purpose of succession and that though the chela would succeed to the Gaddi, he would hold the properties not for personal enjoyment but for the benefit of sishyas and their sishyas indicating that the property was trust property.
Further, the land donated by this document admittedly is a portion of the site on which the Math stands.
The gift of such land could be for no other object but for the purpose of the construction of the Math and therefore a gift to the Math, though it would normally be in the name of the Mahant, the head of the Math.
Another document of importance in this connection is the Will, Exhibit 140, executed by Mahant Mohan Dass in 1857 in favour of his disciple who was the subsequent Mahant by the name Mahant Raghunandan Das.
This Will, besides speaking of the careful training given to Raghunandan Das making him fit to succeed to the gaddi, states : "After me the said Raghunandan as my successor in the Mahantai Gaddi shall become the Mahant, Malik and Gadanashin and shall continue to exercise ownership and possession in respect of all the properties as he is doing now and shall enjoy as the rightful owner and Malik of all the movable properties of and connected with this Math both within this part of the country and outside (Desh Bideshare) and shall continue to manage the rendering and supplying of the fixed Sheba Puja offerings and Bhog etc. of Shri Jagannath Mohaprabhu in accordance with the traditional customs and shall give food and shelter, as he is doing now, to Bhaishnab guests and other persons arriving in the Math (Abhyagata) etc., and committing no laches in this and remaining in observance of his own religion, shall manage all affairs".
The last expression with respect to giving of food and shelter to Vaishnay guests and other persons arriving in the Math etc. indicates that visitors.
belonging to the Ramanuj Sampraday, used to visit the Math when on a pilgrimage to the Lord Jagannath Temple and the Mathadhish of Emar Math used to give shelter and food to them and the will enjoined the nominee to continue that practice.
Such a practice shows that the beneficiaries of the Math properties were again indeterminate in number.
The gift being to the Math.
though ostensibly in the name of the Mahant, the Mahant held the properties as a trustee for the indeterminate class of beneficiaries, viz., sishyas, anusishyas and visitors.
This stamps the Math with the public character.
It is significant to note that there is not a word in this document to the effect that Mahant Mohan Das possessed any private property and that such private property was to go to Raghunandan Das who was to succeed him on the gaddi or to somebody else, The only conclusion from such an omission can be that Mahant 446 Mohan Das did not consider any, property, to be his own personal property.
Whatever he possessed and over which he exercised ownership was considered to be the property of the Math or properties connected with the Math and that his successor was to exercise ownership and possession over all such properties.
We therefore hold that the Emar Math is a math as defined in the Act and that it is a public math.
The history of the Emar Math, according to the passage in the Puri Gazetteer, fits in with our finding.
The High Court has relied on what has been stated in the Puri Gazetteer of O 'Malley of 1908, at pp.
112 113.
The relevant portion of the passage relied on is the following: "No account of Jagannath worship would be complete without some account of the maths in Puri.
Maths are monastic houses originally founded with the object of feeding travellers, beggars, and ascetics, of giving religious in struction to chelas or disciples, and generally of encouraging a religious life.
The heads of these religious houses who are called Mahants or Mathadharis are elected from among the chelas, and are assisted in the management of their properties by Adhikaris who may be described as their business managers.
They are generally celibates but in certain maths married men may hold the office.
Mahants are the gurus or spiritual guides of many people who present the maths with presents of money and endowments in land.
Thus, the Sriramdas or Dakshinaparswa Math received rich endowments from the Mahrattas its abbot having been the guru of the Mahratta Governor; While the Mahant of Emar Math in the eighteenth century who had the reputation of being a very holy ascetic, similarly got large offerings from his followers.
Both Saiva and Vaishnava Maths exist in Puri.
The lands of the latter are known as Amruta Manchi (literally nectar food), because they were given with the intention that the proceeds thereof should be spent in offering bhoga before Jagannath and that the Mahaprasad thus obtained should be distributed among pilgrims, beggars and ascetics; they are distinct from the Amruta Manchi lands of the temple itself which are under the superintendence of the Raja.
In 1848 Babu Brij Kishore Ghose roughly estimated the annual income of 28 maths from land alone at Rs. 1,45,400 and this income must have increased largely during the last sixty years.
There are over 70 maths in Puri Town.
The Chief Saiva maths are located in the sandy tract near Swargadwar viz., Sankaracharya math with a fine library of old manuscripts and Sabkarananda math which has a branch at Bhubaneshwar.
Most of the maths are naturally 447 Vaishnava.
The richest of the latter are Emar, Sriramdasa and Raghavadasa the inmates of which are Ramats or followers of Ramananda.
" It is urged for the appellant that what is stated in the Gazetteer cannot be treated as evidence.
These statements in the Gazetteer are not relied on as evidence of title but as providing historical material and the practice followed by the Math and its head.
The Gazetteer can be consulted on matters of public history.
The next question relates to the nature of the properties in suit.
The oral evidence about the foundation of the Math or about the various acquisitions of property by purchase or by gift is nil.
Whatever a witness has deposed has not been on the basis of his personal knowledge.
This is natural when the Math was founded about two hundred years ago and when most of the acquisitions had taken place long ago.
The best person to speak, though not from personal knowledge, could have been the Mahant himself.
He can base his knowledge on the documents about the history of the Math and the acquisition of the properties.
Such documents must naturally be in the custody of the Mahant.
The Mahant has not come in the witness box.
All the documents have not been produced.
Some documents which could have thrown some light on the question under determination have not been produced.
It is true that the defendant respondent also did not call upon the plaintiff appellant to produce the documents whose existence was admitted by one or the other witness of the plaintiff and that therefore, strictly speaking no inference adverse to the plaintiff can be drawn from his non producing the list of documents.
The Court may not be in a position to conclude from such omission that those documents would have directly established the case for the respondent.
But it can take into consideration in weighing the evidence or any direct inferences from established facts that the documents might have favored the respondent 's case.
The documents relied upon for the appellant relate to acquisition of properties by purchase or gift and are in the name of the Mahant of the Math.
Such documents being in the name of the Mahant alone, do not necessarily lead to the conclusion that the properties were acquired or received in donation by the Mahant in ],is personal capacity for his personal use and possession.
An inference that they were acquired by the Mahant for the Math is equally possible and in fact is to be preferred to what appears on the face of the documents.
The onus of proof being on the appellant, it was possible for him to establish his case from the documents available to him.
But he has chosen not to place at the disposal of the Court all the relevant documents.
It is significant to note that not a single document has been produced by the plaintiff 448 which specifically mentioned the purchase or the gift to be by or to the Math itself.
It is difficult to believe that the Math acquired no property during the long period of its existence.
The Mahant as the head of the institution acts for the Math and is its real representative.
All the dealings for and on behalf of the Math must be conducted by the Mahant and it should be no wonder if the Mahant acting for the Math acts ostensibly in his own name.
Though the documents relating to purchase of properties have been produced, no evidence was led to show that they were purchased from the personal assets of the Mahant.
Presumably if there was such evidence, it would have been produced.
The only possible inference which can be drawn is that they were purchased from the assets of the Math.
Reference may be made to Sitaram Days Banasi vs H.R.E. Board Madras(1) and to Raghbir Lala vs Mohammad Said(1).
In the former case, Varadachariar, J. said: "From the few sale deeds filed in the case, it no doubt appears that some of those properties were purchased in the name of the prior Mahant; but it being admitted that he was an ascetic and celibate and the head of the institution, the probabilities are that they were purchased with the funds of the institution.
" and in the latter it was said: "No doubt if a question arises whether particular property acquired by a given individual was acquired on his own behalf or on behalf of some other person or institution with whom or with which he was connected the circumstance that the individual so acquiring property was a professed ascetic may have importance.
" Reference may also be made in this connection to the Order, Exhibit 136, of the Maharaja of Puri, to Dewan Bhramarbar Ray.
The order states : "The Maharaja hereby grants this Sananda taking Rs. 3,000 that he has granted the following 145 Batis and 15 Manas of land, that the income of this land will be utilised in Bhog of Lord Jagannath and distributed among the coming Baishnabas.
The 19th day of Mass, Anka 2. 1.
Rahang, Ph.
Alisa 117 Batis and 15 Manas.
Out of Bania Kera 10 Batis.
Chabiskud, Ph.
Tinikud 18 Batis.
" Of the three properties mentioned in this order, the first one belongs to Schedule Ka 1, the second to Schedule Kha and the third to Schedule Ka 2, attached to the plaint.
The property in Schedule Ka 1 is the property which is said to have been acquired by the plaintiff and his ancestors.
The property in Schedule Ka 2 is the property said to be acquired by the plaintiff 's (1)I.L.R. (2) A.I.R. 1943 P.C. 79.
449 ancestors for personal services to Lord Jagannath while the properties in Schedule Kha are said to be acquired subject to a charge of offering Bhog to Lord Jagannath.
The order makes no distinction in the nature of the objects for which the three properties are given.
In fact it shows that the income from all the three properties was to be utilised in offering Bhog to Lord Jagannath, and for distributing the prasad among the Vaishnavas who would visit the place.
There is nothing in this order that any of the properties was for the personal enjoyment and possession of the Mahant alone.
It is not possible to hold that the properties covered by the same grant should fall in different categories as is the case, according to the schedules attached to the plaint.
Apart from (these general considerations, the documentary evidence on record does not support the case of the plaintiff with respect to the properties in schedule Ka 1 and Ka 2.
It may also be mentioned at this stage that there is no document on record with respect to the properties in schedules Kha and Ga.
We have already referred to document Exhibit 110, the gift deed with respect to the land which forms part of the site of the Math.
Exhibit 112 refers to certain land given to the Adhikari of Emar 'Math for building a temple for the God.
The document states that the drain for the gruel from the temple of Lord Jagannath used to pass over this land and that this drain had to be shifted.
It is difficult to believe that the land which was being used in connection with a public temple would have been given for the purpose of personal enjoyment by the Mahant or for the purpose of constructing a private temple.
The land mentioned in Exhibit 115 and Exhibit 1.16 were acquired by the Mahant on payment of certain amounts.
He was further required to pay certain amount towards the 'Kotha Bhoga ' of Lord Jagannath.
Exhibit 117 relates to a land purchased by the Mahant.
He was required to pay certain amount towards Chamar Seba of Lord Jagannath.
Exhibit 118 mentions that certain land which the Mahant had purchased was being assigned to his Math in order that he might enjoy it for all times to come.
This clearly brings out that the land purchased by the Mahant from some person was made over to the Math.
He was exempted from payment of all sorts of extra taxes or other similar duties.
Exemption from revenue and taxes appears to have been granted because it was understood that the lands were of the ownership of the Math and not the personal properties of the Mahant.
450 Exhibit 1 19 sanctions certain purchases by Mahant Samujamatra and states that he will enjoy the same for all time to come on dedication of all sorts of requirements for Gundichaghar Chali (House of Lord Jagannath).
No other demand towards Kotha should be made on him.
This again clearly indicates that the property was dedicated for meeting the expenses of Gundichaghar Chali and was exempted from any other demand towards the Kotha presumably the Kotha Bhog of Sri Lord referred to in Exhibits 115 and 116.
This property is included in Schedule Ka 2.
They had to offer seva to Lord Jagannath in different forms, e.g., offering Bhog and getting back Maha Prasad, Chamar Seva ie., fanning of the Lord etc.
For Bhog or other services which required expenses, the saints were in need of funds and naturally the devotees of the saints would make gifts to them to enable them to perform these services with respect to the lands purchased by them was therefore merely to provide them with funds necessary for rendering services to Lord Jagannath, on behalf of the Math and also to meeting the necessary expenses in running of the Maths which would include expenses on the maintenance of the buildings, feeding of the Mahant and the disciples and such other persons who came to reside at the Math and also for distributing food to the poor.
The documents referred to above make this amply clear and thus show that the properties to which they relate do not belong to the Mahant personally but really belonged to the Math.
Some properties have been shown to be purchased by the chelas of the Mahants previous to their occupying the gaddi of the Mahant, that is to say, such properties were purchased when they were mere chelas and not mahants.
It is therefore submitted for the appellants that these properties could not be held to be math properties now.
It is true that the presumption that the properties that were obtained during the period when they were not Mahants cannot be presumed to be properties purchased or acquired for the Math.
But the fact remains that when they themselves became Mahants such self acquired properties did not appear to have been treated in any separate manner.
Proceeds from such properties were mixed up with the proceeds of the other property.
Letters, Exhibits C & D, by Mahant Gadadhar Das to the Commissioner speak of the entire mingling of the accounts of the private and Math properties.
Courts below did not rightly believe such statements.
Further, it 451 may be noted that it appears from the sale deed, Exhibit 77, executed in favour of Gadadhar Ramanuj Das, Chela of Mahant Raghunandan Ramanuj Das in 1909, that the founder owed a sum of Rs. 400/ to the Mahant Guru of Gadadhar and that this sum was adjusted towards the purchase price of the property conveyed under this deed.
Mahant Mohan Das, by his will Exhibit 140, permitted his Chela Raghunandan, who was nominated to succeed him to get his own name gradually mutated in respect of the lands and zamindaris standing in the name of the Mahant.
It follows therefore that the mere fact that certain properties were ostensibly purchased by the chelas does not necessarily mean that those properties were either acquired as their personal properties ' or that they continued to be their personal properties after they succeeded to the gaddi.
He has not produced the consolidated budget which is prepared.
That could have indicated whether the income and expenditure over the property in suit was treated as of the Math or not.
Accounts showing the sources of money from which the properties were acquired have not been produced.
These omissions, together with statements in letters Exhibits C & D, are sufficient to support the findings of the Courts below that even these properties had been treated as Math properties.
We are therefore of opinion that the properties mentioned in Schedules Ka 1 and Ka 2, alleged to be the personal properties of the Mahant, are not his personal properties but are properties of the Math.
We may now consider the properties in schedule Kha said to be the Amrut Manohi properties of Lord Jagannath and held by the plaintiff as marfatdar.
The plaintiff alleges that these properties were acquired either by purchase or 'krayadan ' or by way of gift subject to a charge of some offering to Lord Jagannath which depended upon the individual judgment and discretion of the plaintiff, and that the public had no concern with the enjoyment or management of the usufruct thereof.
The Gazetteer makes a reference to such properties and states: "Both Saiva and Vaishnava Maths exist in Puri.
The lands of the latter are known as Amruta Manohi (literally nectar food), because they were given with the intention that the proceeds thereof should be spent in offering bhoga before Jagannath and that the Mahaprasad thus obtained should be distributed among pilgrims, beggars and ascetics , they are distinct from the Amruta Manohi lands of the Temple itself which are under the superintendence of the Raja".

Output:
The Commissioner of Hindu Religious Endowments, Orissa, de manded contribution under section 49 of the Hindu Religious Endowments Act and took steps to enforce certain other provisions of the Act against the appellants and certain properties.
These properties, the appellant.% claimed, were not math as defined in the Act and the public had no free access to its premises and had no right of entry or worship of the deity installed therein.
The Commissioner held that the properties were math as defined in the Act and that the properties constituted a 'religious endowment ' to which the Act applied.
Thereafter, the appellants instituted a suit and prayed for setting aside of the decision of the Commissioner and for a declaration that the Act did not apply to the properties in suit.
The trial Court dismissed the suit, which on appeal was confirmed by the High Court.
In appeal by special leave.
HELD: The appeal must be dismissed.
(1)An institution comes within the definition of 'Math ' if it satisfies three conditions (i) that the institution be for the promotion of.
the Hindu religion; (ii)that it be presided over by a person whose duty is to engage himself in spiritual service or who exercises or claims to exercise spiritual head ship over a body of disciples; and (iii) that the office of such person devolves in accordance with the directions of the founder of the institution or is regulated by usage.
[441E] There was ample evidence on the record to show that the property was presided over by the Mahant, that the Mahant exercised spiritual headship over the disciples, and that the succession to the office of the Mahant was regulated by the usage of the institution.
There could be no question that such an institution must have been for the promotion of the Hindu religion.
[441F] Religious endowment includes the premises of the Math.
If the Premises of the property had been used both for secular purposes and for religious purposes, it according to the explanation to sub section
(12) of section 6, shall be deemed to be a religious endowment and its administration shall be governed by the provisions of the Act.
This makes it clear that the premises of the math is not only deemed to be a religious endowment, but is deemed to be a Hindu Public religious en dowment to which the Act applies, as the provisions of the Act govern its administration.
It follows that an institution which comes within the definition of math under the Act, ipso facto, comes within the expression 'Hindu public religious endowment ' and therefore become subject to the provisions of the Act.
[441H 442B] 437 The definition of 'temple ' requires that the place would be a temple if it be used as a place of public religious worship.
There is no requirement that an institution to be a math must be a public institution for the promotion of the Hindu religion.
The use of the word 'public ' was not necessary in connection with an institution for such promotion of the Hindu religion as any institution for such promotion of the Hindu religion must be of a public nature.
the object being to promote Hindu religion, there would be no point in shutting the benefit of the institution to anyone among the Hindus.
[442C D] The distinction between a public trust and a private trust is, broadly speaking, that in a public trust the beneficiaries of the trust are the people in general or some section of the people, while in the case of a private trust the beneficiaries are an ascertained body of persons.
The beneficiaries of a math are the members of the fraternity to which the math belongs and the persons of the faith to which the spiritual head of the math belongs, and constitute, therefore, at least a section of the public.
Maths, in general, consequently, are public maths.
[442E F] [QUAERE: Whether there can be a private math or not?] (2)The onus was initially on the appellant plaintiff to show that the order of the Commissioner was wrong and this he could only show by establishing prima facie that the Math was not a math as defined in the Act and that the various properties were not endowed properties.
[443H] (3) The gazetteer could le consulted on matters of public history.
[447B] (4) The documentary evidence on the record did not support the case of the appellant, but showed that the Properties were those of the math.


Input:
Civil Appeal Nos.
1739 1740 of 1968.
(From the Judgment and Decree dated 14 2 1967 of the Delhi High Court in Regular First Appeal Nos.
5 D, and 54 D of 1958).
969 V. section Desai and Girish Chandra, for the Appellant.
Sachin Chaudhary, B.P. Maheshwar and Suresh Sethi, for the Respondent No. 1 in (CA.
1739/68) and for Respondent No. 2 in 1739/68) and Respondent No. 1 in (CA.
No. 1740/68).
A. K. Sen and D. Goburdhan, for Respondent No. 2 in (CA.
No. 1740/68).
The Judgment of the Court was delivered by SHINGHAL, J.
, These two appeals by certificate have been consolidated by an order of this Court dated April 15, 1969.
They are directed against a common judgment of the Delhi High Court dated February 14, 1967, in Regular First Appeals Nos.
5 D and 54 D of 1958, by which the judgment and decree of the trial court dated January 13, 1958 have been set aside with costs throughout.
As this has resulted in the dismissal of the suit raised by the Union of India, it has filed the present appeals.
The facts giving rise to the appeals are quite simple.
Harjas Rai Malhotra, defendant No. 3, is the father of Krishan Lal Malhotra, defendant No. 2.
The liability of defendant No. 3 to income tax and super tax for the as sessment year 1947 48, was fixed Rs. 1,25,090/11/ in March, 1952.
A demand was made for its payment, but he neglected to meet it and a certificate was issued on October 8, 1952 to the Collector of Delhi for its recovery as ar rears of land revenue.
The Collector was asked to attach house No. 15, Keeling Road and house No. 9, Hailey Road in New Delhi, of defendant No. 3.
Both the houses were attached on October 13, 1952.
Meanwhile, defendant No. 3 appealed against the order of assessment.
The Appellate Assistant Commissioner allowed the appeal on May 12, 1953, set aside the assessment and directed a fresh assessment.
The order of fresh assessment was made on November 30, 1953 and the incometax demand was reduced to Rs. 1,05,769.13.
The as sessments for 1944 45 and 1948 49 were completed on March 28 and 31, 1953, respectively, raising a tax demand for Rs. 1,94,738.15.
A recovery certificate was issued to the Collector for the same on May 4, 1953 and the house at No. 15, Keeling Road was again attached on August 6, 1953.
We are not concerned with the house at No. 9, Hailey Road, for the controversy before us relates to house No. 15, Keeling Road, hereinafter referred to as the house.
That house had been ostensibly purchased by defendant No. 2 in December, 1946 for Rs. 60,000/ .
He filed an application objecting to the attachment on the ground that the house belonged to him, but the Collector dismissed the objection holding that the house belonged to defendant No. 3.
Defend ant No. 2 did not appeal against that order and did not question it by a suit.
Thus far, the facts are not in dispute.
970 It was alleged in the plaint that the house was pur chased by defendant No. 3, "benami", in the name of his son defendant No. 2, out of his "own funds drawn from his bank account" and that 'the "full beneficial ownership, right, title and interest in the said property has always belonged and continues to this day to belong to the 3rd defendant.
" The plaintiff alleged further that during the pendency of his appeal to the Appellate Assistant Commissioner against the assessment which had been made in March 1952 for 1947 48 and the assessment proceedings for 1944 45 and 1948 49, defendant No. 3 "in collusion and conspiracy with the 2nd defendant and certain other persons, and with the view, intent and purpose of defeating and delaying his creditors including the plaintiff, had recourse to diverse ways and means" as detailed in the plaint.
He was thus alleged that, in February 1953, defendants Nos. 2 and 3 and five other persons purported to form a limited company known as Moksh Builders and Financiers Ltd., hereinafter referred to as the Company, which was arrayed as defendant No. 1 in the suit, with an authorised capital of Rs. 5,00,000/ divided into 5000 shares of Rs. 100/ each.
There were 7 subscribers to the Memorandum and the Articles of Association of the Compa ny and each of them took 10 shares, Soon after the Appel late Assistant Commissioner made his aforesaid order dated May 12, 1953 for fresh assessment of the income tax liabili ty of defendant No. 3, a sale deed dated May 25, 1953 was brought into existence whereby defendant No. 2 "purported to convey" the house to defendant No. 1 for Rs. 1,00,000/ of which Rs. 90,000/ were payable in the shape of shares in the Company, Rs. 8,000/ payable to Sunrise .Investors Ltd. and Rs. 2000/ in cash.
The plaintiff pleaded that "these transactions were all sham, colorable, and effected and entered into with the active aid, instigation and advice of the 3rd defendant and to subserve and carry out the object of placing his property, viz., No. 15, Keeling Road out of the reach of his creditors".
It was further urged as fol lows, "The consideration mentioned in the sale deed of 25th May, 1953 was illusory.
In effect and substances the 2nd defendant pur ported to sell a house to the I st defendant in which company in return was to become a holder of shares .
of controlling interest, the shares being the alleged price.
, Except for the legal fiction of the I st defendant Company being juristic person the 'sale was by the vendor to himself.
None of these de vices and subterfuges could divest the 3rd ', defendant of his ownership of the property in question.
The 1st defendant company by its_promoters directors and office bearers was fully aware of all the facts of the case, including the true state of the title to the property No. 15, Keeling Road, the highly embarrassed financial circumstances of the 3rd defendant the facts that he owed to the plain tiff" alone taxes to the amount of several lakhs of rupees etc.
The 1st defendant is not a purchaser in good faith for consideration of the said property or without notice of the title of the 3rd defendant.
On the other hand the sale deed dated 25th May, 1953 to the 1st defendant was executed by the name lender the 2nd defendant at the instance of the true owner of 971 the 3rd defendant with intent to defeat or delay the latter 's creditors, and is voidable at the option of any of such creditors includ ing the present plaintiff.
" Defendant No. 1 objected to the attachment of the house for the realisation of the arrears of income tax of defend ant No. 3.
The Additional Collector allowed the objection by a summary inquiry, and the Chief Commissioner dismissed the appeal on April 1, 1954.
Both those officers, according to the plaintiff, proceeded on "prima facie considerations" and left the parties to seek their redress in the civil court.
With these specific averments the,plaintiff raised its suit seeking leave to sue on behalf and for the benefit of itself and the other creditors, if any, of defendant No 3.
It prayed for a declaration that (i) the sale deed dated May 25, 1953 was void as against the plaintiff and all other creditors of defendant No. 3, and (ii) the house is and continued to be owned by defendant No. 3.
In the alterna tive, the plaintiff prayed for a declaration that the shares allotted to defendant No. 2 belonged to defendant No. 3.
It also prayed for a declaration that it was entitled to pro ceed against the "properties which may be declared to be of 3rd defendant 's" by attachment and sale to realise the tax arrears due from him.
A prayer was made for setting aside the orders of the Additional Collector and the Chief Commis sioner on the objection petition of defendant No. 2.
Defendant No. 3 did not appear to contest the suit in spite of personal service and the trial court made an order on April 15, 1955 to proceed against him ex parte.
Separate written statements were filed by the Company and defendant No. 2 The Company took the plea, inter alia, that it had been genuinely and properly formed and that it was a bona fide purchaser for value and the "transaction was quite real and genuine".
It denied that the sale deed dated May 25, 1953, was executed at the instance of defendant No. 3, or that it was intended to defeat or delay his creditors.
P was pleaded that defendant No. 2 was the rightful owner of the house which he had rightfully purchased with "his own money (Rupees 10,000/ ' by cheque No. 32920 dated 14.11.1946 on the New Bank of India Ltd., New Delhi drawn by his mother K. Rani and Rs. 50,000/ paid in cash before Sub Registrar)".
The Company also pleaded that the transaction of sale in its favour was without notice of any body else 's claim and was binding.
Defendant No. 2 filed a short written statement stating that he was the owner of the house having purchased it with "his own money".
He pleaded that he had paid Rs. 10,000/ by cheque on New Bank of India Ltd., New Delhi, and Rs. 50,000/ were paid before the SubRegistrar.
He pleaded further that he had no knowledge of the Collector 's order and that his order, if any, was ex parte.
As regards the Company, defendant No. 2 pleaded that it was a real and genuine Company and that out of his shares worth Rs. 90,000/ he had sold shares worth Rs. 74,000/ .
12 1338SCI/76 972 The trial court found that the house was purchased "benami" in the name of defendant No. 2, by defendant No. 3 with his own money and that the sale of the house to the Company by defendant No. 2, was "sham and was effected in order to defeat or to delay the creditor of defendant No. 3 and that defendant No. 1 had no real existence.
" The trial court therefore granted a decree declaring that the sale deed dated May 25, 1953 was void as against the plain tiff and all other creditors, if any, of defendant No. 3 and that the House" is and continues to be owned by the 3rd defendant and that the plaintiff is entitled to proceed against the said properties by way of attachment and sale to realise the tax arrears due from him.
" The trial court set aside the orders dated October 9, 1953 of the Additional Collector on the objection petition of defendant No. 2 and of the Chief Commissioner dated April 1, 1954.
As the High Court has set aside the judgment ' and decree of the trial court, the present appeals have been filed by the plaintiff as aforesaid.
We shall refer to the findings of the High Court as and when necessary.
The main point in controversy was whether the house was purchased by defendant No. 3 'benami ' in the name of defend ant No. 2? This was the subject matter of issue No. 1 in the trial court.
We have made a reference to the plaintiff 's plea that the purchase was "benami" and payment was made out of the funds of defendant No. 3, which were drawn by him from his own account.
As has been mentioned, defendant No. 3 did not care to appear and contest the suit even though he was served and knew the nature of the plaintiff 's claim and the basis thereof.
Defendant No. 2 appeared at the trial and pleaded that he purchased the property "with his own money".
The source of the money was within his special knowledge, but it will be recalled that he contended himself by pleading that Rs. 10,000/ were paid by him by a cheque and Rs. 50,000/ were paid before the Sub Registrar.
We have made a reference to the plea of the Company in this respect.
It is no body 's case that the sale of the house to defendant No. 2 was fictitious and that the title of the transferor was not intended to pass.
What we have to examine is whether the title, on sale of the house in Decem ber 1946, was transferred to defendant No. 3, who was.
the real purchaser, and not to defendant No. 2, who was only the ostensible transferee and was no more than a "benamidar".
It has been held in Gangadara Ayyar and others vs Subrarnania Sastrigal and others(1) that "in a ease where it is asserted that an assignment in the name 011 one person is in reality for the benefit of another, the real test is the source whence the consideration came" It is also necessary to examine in such eases who actually has enjoyed the benefits of the transfer.
Both these tests were applied by this Court in Meenakshi Mills, Madurai vs The Commissioner of IncomeTax Madras.(2) It is therefore necessary, in the present case, to (1) A I.R. (2) ; 973 find out the source of the consideration for the. transfer, as also to find out who has been in enjoyment of the bene fits of the transaction.
It is equally well settled that, although the onus of establishing that a transaction is 'benami ' is on the plaintiff, 'where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable proba bilities and legal inferences arising from proved or admit ted facts.
" The burden of proof is, however not static, and may shift during the course of the evidence.
Thus while the burden initially rests on the party who would fail if no evidence is led at all after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by 'either side, i.e. on the evidence on record.
As has been held by this Court Kalwa Devadattam and others vs The Union of India and oth ers(1) that where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus and out of place, and the truth or otherwise of the case must.
always be adjudged on the evidence led by the parties.
This will be so if the court finds that there is no difficulty in arriving at a definite, conclusion.
It is therefore necessary to weigh the evidence in this case and to decide whether, even if it were assumed that there was no conclusive evidence to establish or rebut the "benami" allegation, what would, on a careful assessment of the evi dence, be a reasonable probability and a legal inference from relevant and admissible evidence.
The sale in question was admittedly made in December 1946.
Defendant No. 2 had admitted in his statement date May 29, 1957 that he was born in 1928.
He was therefore 18 years old at that time.
His father (defendant No. 3) was also alive at that time, and it is not his case that he (defendant No. 2) had any money ' of his own, for he has stated that he got Rs. 10,000/ from his mother and Rs. 50,000/ from his grandfather to constitute the sum of Rs. 60,000/ for which he purchased the house.
It is however a significant fact that the defendant No. 2 did not disclose any such source of the money in his written state ment dated April 15, 1955.
It took ,him two years to come out with such a case.
He was given an opportunity, during the course of his cross examination, to explain the omission regarding the disclosure of the source of the sum of Rs. 50,000/ in his written statement, but he contented himself by saying that he could not give "any reason as to why he (I) omitted to mention in the written statement about receipt of Rs. 50,000/ from ' his (my) grandfather".
Similarly he failed to explain why he did not mention in his written statement that the cheque for Rs. 10,000/ was drawn by his mother.
It is true that there is a mention in document exhibit D1 that out of the sum of Rs. 60,000/ "a sum of Rs. 10,000/ has already been paid to the vendor by the vendee by cheque No. 32920 dated November 14, 1946, on the New Bank of India Ltd., New Delhi," but it is again signifi cant that while the document states that the payment of Rs. 10,000/ was made by (1) ; 974 the vendee (defendant No. 2) 'by the aforesaid cheque, he has stated in the trial court that the cheque for Rs. 10,000/ was issued by his mother, in favour of the vendor.
He was not able to explain the discrepancy: and merely stated that his written statement (which did not disclose the source and the name of the person who drew the cheque for Rs. 10,000/ ) was correct.
If it had been a fact that defendant No. 2 really obtained a cheque for Rs. 10,000/ from his mother, in the vendor 's name, and, if it was not really a cheque drawn by his father, there was nothing to prevent him from establishing that f. act with reference to the counter foil of his mother 's cheque book or her account with the bank.
The defendant has also not stated whether he repaid the money to his mother and, if so, when, or whether it was a gift to him and, if so, why, when she had another son also.
As it is, it cannot be said that defendant No. 2 has been able to establish that it was he who paid the sum of Rs. 10,000/ to the vendor.
According to the written statement of defendant No. 2, the balance of Rs. 50,000/ was paid before the Sub Regis trar.
He has stated that about 7 or 8 days before his death, his grandfather Sohna Mal (who died in October 1946) paid him Rs. 50,000/ ' after taking.
out the money which was "lying underneath his pillow.
" He could not however stand the test of cross examination, for he could not state where the money was kept by his grandfather and whether, he at all had a bank account.
The High Court did not care to examine the reliability of the defendant 's evidence regarding the source from which he received Rs. 60,000/ even though it was an important question and had been examined by the trial court with reference to all the other evidence on the record including the statement of Amar Nath Sharma D.W.3.
We find that there is no reason for us to disagree with the trial court 's view in the matter, based on the parol evi dence on the record.
In arriving at this conclusion, we have not relied on that part of the trial court 's judgment where it has made a reference to the admission of defendant No. 3, for we shall deal with them separately.
The reason able preponderance of probability therefore is that defendant No. 2 has failed to establish the source of the consideration of Rs. 60,000/ even though it was art impor tant fact within his special knowledge.
He could not therefore be said to be the real owner of the house.
It is also an important fact that defendant No. 2 has failed, to prove that he enjoyed the benefit of the sale.
He claimed that he had shown the rent of the house in his income tax returns, but he did not produce any rent note.
Even the tenant who was 9aid to be living in the house on the date of the sale, has not been examined.
While the trial court has examined this aspect of the controversy, the High Court has missed it altogether.
The High Court went by the view that statement exhibit P. 1 of defendant No. 3, the income tax return of defendant No. 3 showing the house as his property, his statement of account and the assessment order for the year 1948 49 showing the same, were not admissible 975 in evidence against defendant No. 2 and that there was no evidence either of the plaintiff or the defendants on which a finding as to the "benami" nature Of the transaction could be based.
That decision is obviously based on a misap preciation of the law relating to "benami" transactions for, as has been stated, it was necessary to find out whether it was defendant No. 3 who had enjoyed the benefit of the transaction.
Moreover, the finding of the High Court is against the evidence on the record, and must be set aside.
We have therefore no hesitation in holding that the purchase of the house was "benami" and that its ostensible owner defendant No. 2 was not the real owner but was a "benamidar.
" The ancillary question is as to who was the real owner of the house for whom defendant No. 2 was the "benamider"?.
We have not taken the admissions of defendant No. 3 into consideration so far, but they have a direct bearing on the question now before us.
lie recorded a state ment exhibit P. 1 dated August 12, 1950 before Puran Chand P.W. 1, Income tax Officer, which has been proved by the wit ness.
It has been stated there as follows, "I purchased 15 Keeling Road on 12.12.46 for Rs. 60,000/ in the name of my son (Major Krishan Lal).
This money was paid out of my bank accounts and I have shown the details and payments from my bank pass books.
" 0 Then there is document exhibit P. 6 which is a copy.
of the personal account of defendant No. 3.
It was filed in connection with the return of his income tax for 1947 48.
An attempt was made to argue that the document had not been proved or marked as an exhibit.
We have seen the original document and we have no doubt that the whole of it was tendered in evidence and was marked as exhibit P. 6.
The identity of the document has been established by the state ment of Puran Chand P.W. 1 that the scribbling on it was made by him.
The document has therefore been proved beyond doubt.
It shows that it was defendant No. 3 who spent Rs. 60,000/ on "property" in that assessment year.
Both exhib its P. 1 and P. 6 go to prove that the house was purchased by defendant No. 3 out of his own funds in the name of his son defendant No. 2 who, it will be recalled, was admittedly only 18 years old at that time and did not have any money of, his own.
Moreover defendant No. 3 showed the income accruing from the house as his own income in his return for the years 1947 48 and 1948 49.
Counsel for the respondents have urged for the exclusion of these admissions.
The main attack was that they were admissions of a co defendant and were not admissible against defendant No. 2.
As has been stated, we have not taken them into consideration as evi dence against that defendant.
There is however no force in the other argument that they are not admissible in evidence against defendant No. 3 as he was not confronted with them in the, trial court and they were not adverse to the inter est of their maker at the time when they were made.
It has 976 been held by this Court in Bharat Singh and another vs Bhagirath(1) that an admission is substantive evidence of the fact admitted, and that admissions duly proved are "admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions.
" In taking.this view this Court has noticed the decision in Ajodhya Prasad Bhargava vs Bhawani Shanker Bhargava and another(2) also.
The point has been considered and answered as follows in Wigmore on Evidence, Volume IV, 1048 (at page 3), "The theory of the Hearsay rule is that an extra judicial assertion is excluded unless there has been sufficient opportunity to test the grounds of assertion and the credit of the witness, by cross examination by the party against whom it is offered (post, 1362); e.g. if Jones had said out of court.
"The party opponent Smith borrowed this fifty dollars", Smith is entitled to an opportunity to cross examine Jones upon that assertion.
But if it is ,Smith himself who said out of court, I borrowed this fifty.
dollars, cer tainly Smith cannot complain of lack of opportunity to cross examine himself before his assertion is admitted against him.
Such a request would be absurd.
Hence the objection of the Hearsay rule falls away, because the very basis of the rule is lacking, viz, the need and prudence of affording an opportunity of crossexamination.
" Moreover, the defendant No.3 had full opportunity,. to appear and defend himself, but he did not do so and the case proceeded against him ex parte.
The plaintiff even tried to examine him as his own witness, but his appearance could not be secured in spite of the prayer for the issue of summonses and a warrant.
There is therefore force in the argument to the contrary.
So also, there is no force in the argument that the aforesaid admissions or statements of defendant No. 3 could not be read against him as they were not adverse to his interest when made.
There is no such requirement of the Evidence Act and the argument is untenable as it unreasona bly restricts the opportunity to prove the true state of affairs on the party 's own showing and to demolish his subsequent claim as self contradictory.
This point has also been dealt with in Wigmore on Evidence, 1048 (at page 4) in this way, "It follows that the subject of an admission is not limited to facts against the party opponent 's interest at the time of making it.
No doubt the weight of credit to be given to such statements is increased when the fact stated is against the person 's interest at the time; but that circumstance has no bearing upon their admissibility.
On principle, it is plain that the probative reason why a party opponent 's utterance is sought to be used against him is ordinarily the reason noted above, in par.
(1)b,.
viz. that it exhibits (1) ; (2) A.I.R. 1957 All. 1. 977 an inconsistency with his present claim, thus tending to throw doubt upon it, whether he was.
at the time .speaking, apparently in his own favour or against his own interest. ' The contrary view, has been characterised by Wigmore as "a fallacy.
in the fullest sense.
" Another argument which has been advanced against the admissibility of the aforesaid admissions of defendant No. 3 is that they could be evidence only in terms of section 33 of the Evidence Act.
That argument is also quite untenable because section 33 deals with statements of persons who cannot be called as witnesses, and does not restrict or override the provisions relating to admissions in the Evidence Act.
The High Court also committed a similar error of law in its impugned judgment.
The aforesaid admis sions of defendant No. 3 are therefore satisfactory evidence to prove.that he himself was the owner of the house and his son, defendant No. 2 was merely a "benamidar" for him.
It would thus appear that the finding of the trial court on issue No. 1 which dealt with the question whether the house was purchased by defendant No. 3 "benami" in the name of defendant No. 2, was correct and should be restored as the High Court 's finding to the contrary has been viti ated by the substantial errors of law mentioned above.
The other important question is whether the sale of the house in favour of the Company (defendant No. 1 ) was a sham transaction and was effected to defeat and delay the creditors of defendant No. 3.
This was the subject matter of issue No. 2 and the trial court 's finding in affirmative has not even been examined by the High Court.
We find that the admitted facts of the case are by themselves sufficient to show that the finding of the trial court is justified and does not call for any interference.
Defendant No. 3 was assessed to income tax for a sum of Rs. 1,25,090/11/ for assessment year 1947 48 in March 1952.
Defendant No. 3 failed to pay that amount on demand and a recovery certificate was issued on October 8, 1952.
The house was therefore attached on October 13, 1952.
Defendant No. 2 raised an objection, and prayed for the release of the house.
The Collector rejected the objection on March 3,.
No appeal, or other remedy was sought against .that order.
The Appellate Assistant Commissioner however allowed the appeal of defendant No. 3 against the assessment of income tax and ordered a fresh attachment by his order dated May 12, 1953.
In the meantime, the Company was incorporated in February, 1953.
The assessment of incometax for the years 1944 45 and 1948 49 was completed in March 1953 raising the tax demand to Rs. 1,94,735.15, and a recovery certificate was issued on May 4, 1953.
It was in these circumstances that defendant No. 2, who had failed to obtain an order for the release of the house as aforesaid, has tened to sell it to the Company 22 on May 25, 1953.
As has been stated, a fresh recovery certificate was issued to the Collector on May 4, 1953 and the house was again attached on August 6, 1953.
These facts speak for themselves and are quite sufficient to justify the trial court 's finding that sale of the house to the Company was a sham transaction and arose out of the anxiety to save the house some how from sale for realisation of the income tax.
The Company was in fact dominated by defendant No. 2 and his close relations and did not even pay the sale price in cash.
It is also significant that the shares of the other 'relations were insignificant.
Moreover the.
Company could not lead evidence to show that it was able to transact any substantial business whatsoever.
We have therefore no reason to disagree with the trial court 's finding that the Company was formed just to transfer the house to it in an effort to save it from attachment and sale for realisation of the income tax arrears of defendant No. 3.
The finding of the trial court on the issue is quite correct and the High Court committed a serious error of law in not examining this aspect of the matter at all even though it had a great bearing on the controversy.
In the result, we are constrained to allow the appeals.
The impugned judgment and decree of the High Court dated February 14.
1967 are set aside and the decree of the trial court is restored with costs throughout one hearing fee.
V.P.S. Appeals allowed.

Output:
The appellant (plaintiff) filed a suit on behalf of and for the benefit of itself and of other creditors against the respondents (3 defendants) and prayed for a declaration that,, (1) the sale deed of the house in dispute by the 2nd defendant in favour of the 1st defendant was void as against the plaintiff and all other creditors of the 3rd defendant; and (2) that the house was and continued to be owned by the 3rd defendant.
The house was sold in the name of the 2nd defendant for Rs. 69,000.
He is the son of the 3rd defend ant who was alleged to be the real purchaser.
As the 3rd defendant failed to pay the arrears of income tax due from him the house was attached as his property.
The 2nd defendant raised an objection but the objection was reject ed.
The 3rd defendant filed an appeal against the assess ment of income tax and while the appeal was pending before the Appellate Assistant Commissioner, the 2nd and 3rd de fendants, and five other persons formed a limited company, namely, the 1st defendant.
The Appellate Assistant Commis sioner allowed the 3rd defendant 's appeal and ordered a fresh assessment of his income, and the Income Tax Officer made a fresh assessment.
Soon after the 2nd defendant purported to convey the house of the 1st defendant for Rs. 1,00,000 of which Rs. 90,000/ were payable to the 2nd de fendant in the shape of shares in the company.
The house was again attached for recovery of the tax due from the 3rd defendant.
The 1st defendant objected to that attachment.
The objection was allowed and the parties were referred to the Civil Court for.
redress and the suit was filed.
The trial court decreed the suit, but the High Court, in appeal, set aside the judgment.
Allowing the appeal to this Court, HELD: The evidence disclosed that the 3rd defendant 'was the owner of the house, and his son, the 2nd defendant, was merely a benamidar for him; and that the 1st defendant Company was formed just to transfer the house to it in an effort to save it from attachment and sale for realisation of the income tax arrears of the 3rd defendant.
[978 A C] (a) In a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, it is necessary to find out the source whence the consideration came, and to examine who actually was enjoying the benefits of the transfer.
[907 F G] Gangadara Ayyar and others vs Subramania Sastrigal and others (A,I.R. referred to Meenakshi Mills, Madurai vs The Commissioner of In come tax, Madras [(1956) S.C.R. 691] followed.
(b) Although the.
onus of establishing.
g that a transaction is benami is on the plaintiff, where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation.
, .the case must be dealt with on reasonable probabilities and legal inferences arising from proved.
or admitted facts.
While the burden initially rests on the party who would fail if no evidence is led at all, after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by either side.
Thus, the burden of proof is not static, and may shift during the course of the trial Where the 968 entire evidence has been led by the contesting parties on the question in issue, abstract considerations of onus are out of place, and the truth or otherwise of the case must always be.
adjudged on the evidence: led by the parties.
It is therefore necessary to weigh the evidence in this case and to decide whether.
even if it were assumed that there was nO conclusive evidence to establish or rebut the benami allegation, what would, on a careful assessment of the evidence, be a reasonable.
probability and a legal inference from relevant and admissible evidence.
[973 A D] Kalwa Devadattam and two Others vs The Union of India and others ; followed.
In the present case, the 2nd defendant, at the time of the sale, was just 18 years old, and did not have any money of his own.
His father the.
3rd defendant was alive.
The High Court did not examine the reliability of the 2nd defendant 's evidence regarding the source.
from which he received the sum of Rs. 60,000/ even though it was an important question and had been examined by the trial court with reference to the entire evidence on record.
The rea sonable preponderance of probability on the evidence is, that the 2nd defendant had failed to establish the source of the consideration of Rs. 60,000/ even though it was an important fact within his special knowledge.
[973 E H] (d) The 2nd defendant had also failed to prove that he enjoyed the benefit of the sale.
[974 G] In order to find out whether the 3rd defendant was enjoying the benefit of the transaction, the finding of the High Court was clearly against the evidence on record.
The admissions contained in the records before the Income Tax Officer proved that the house was purchased by the 3rd defendant out of his own funds in the name, of his son, the 2nd defendant, and that the 3rd defendant was enjoying the income accruing from.
it as his own income.
[975 E F] (f)(i) The admissions by the 3rd defendant were substan tive evidence of the facts admitted and such admissions, duly proved, were admissible evidence irrespective of wheth er the party making them appeared in the witness box or not, and whether that party when appearing as a witness was confronted with those statements in case a statement con trary to those admissions was made.
They were taken into consideration against the 3rd defendant and not against the 2nd defendant.
[975 H, 976 A B] Bharat Singh and another vs Bhagirath ; , followed.
(ii) There is no requirement of the Evidence Act that unless the admissions were adverse to his interests when made, they could not be read against the person making them.
[976 F] (iii) The contention that the evidence of the admissions is admissible only in terms of section 33 of the Evidence Act was untenable because that section deals with statements of persons who cannot be called as witnesses and does not restrict or override the provisions relating to admissions in the Evidence Act.
[977 A C] (g) The 2nd defendant, who had failed to obtain an order for the release of the house from attachment when it was first attached, hastened to sell the house when the assess ment proceedings were pending before the Income tax De partment.
The 1st defendant Company was in fact dominated by the 3rd defendant and his close relations, it did not even pay the sale price.
in cash, and there was no evidence ' to show that it was able to transact any substantial busi ness.
Therefore, the sale of the house in favour of the 1st defendant was a sham transaction and was effected only to defeat and delay the creditors of the 3rd defendant.
[978 A B]