Input:
Civil Appeal Nos.
2005 2006 of 1972.
From the Judgment and order dated 17 11 1971 and 16 11 71 of the Andhra Pradesh High Court in W.P. Nos. 54 of 1970 and 4059/ 69.
N. A. Palkhivala, Y. V. Anjaneyulu, A. Subba Rao, J. B. Dadachanji, Mrs. A. K. Verma, T. Ansari and A. H. Haskar for the Appellant.
319 V. section Desai, B. B. Ahuja and Miss A. Subhashini for the Respondent.
section P. Mehta, J. B. Dadachanji, R. Narain, Mrs. A. K. Verma, T. Ansari and A. H. Haskar for the Intervener.
The Judgment of the Court was delivered by TULZAPURKAR, J.
These two appeals by certificates granted by the High Court of Andhra Pradesh raise the question of legality and or validity of two notices issued by the Assistant Controller of Estate Duty, Hyderabad, one under section 59(a) and the other under section 61 of the (hereinafter called 'the Act ').
Two parcels of agricultural land (admeasuring 22 Acres 24 Guntas and 8 Acres 23 Guntas) situated in Moosapet village, belonging to one Rashid Shapoor Chenai were during his lifetime, acquired for the Synthetic Drugs Project Factory of the Indian Drugs and Pharmaceutical Ltd. by the Andhra Pradesh Government by Notifications issued on June 19, 1961 and January 18, 1962 under the Land Acquisition Act.
D Possession of the lands was taken in January 1963 and by two separate awards both made on January 31, 1963 the Special Deputy Collector of Land Acquisition awarded a total compensation of Rs. 20,000.
This compensation was received by Rashid himself during his lifetime.
Later two more parcels of agricultural land (admeasuring 131 Acres 10 Guntas and 224 Acres 22 Guntas) situated at Qutbillapur in Medchal Taluk belonging to Rashid where acquired for Hindustan Machine Tools, Units I and II by the Andhra Pradesh Government by Notifications issued on November 1, 1963 and February l, 1964 under the Land Acquisition Act.
Though the former notification was issued during his lifetime and the latter after death, possession of both the lands was taken after his death by the Government on December 4, 1963 and March 15, 1964 and by two separate awards made on March 12, 1965 and March 19, 1965, the Special Deputy Collector awarded a total compensation of Rs. 4,29,360.
This compensation was received in April ]965 by the heirs of Rashid, namely, his widow Mrs. Freny Chenai and son Shapoor Rashid Chenai on whom the estate of Rashid devolved in equal shares.
On the death of Rashid on November 4, 1963, Mrs. Freny Chenai (the appellant in C.A. No. 2206 of 1972) as his widow and the 'accountable person ' filed before the respondent on December 26, 1963 on account of the properties passing on the death of her husband under section 53(3) of the Act.
The estate duty assessment was completed by the respondent on March 29, 1966.
With regard to the lands acquired both during the lifetime of Rashid as well as after their values 320 were taken at the respective figures of compensation (Rs. 20,000 and Rs. 4,29,360) awarded for them by the Special Deputy Collector.
Unfortunately, within two years of his father 's death, Shapoor Rashid Chenai (the son) died on May 7, 1965.
As stated earlier he had one half share in the undivided estate of his late father Rashid.
As required by s.53 of the Act, (Mrs. Khorshed Chebai) (the appellant in C.A. No. 2205/1972) as his widow and the 'accountable person ' filed before the respondent on November 6, 1965 on account of the properties passing on the death of her husband and the Respondent completed the estate duty assessment on December 30, 1966.
In making this assessment also the respondent as in the case of estate duty assessment in respect of the properties passing on the death of Rashid, adopted the values of the lands acquired by the Government at figures awarded by the Special Deputy Collector for those lands.
It appears that the legal heirs of Rashid did not accept the awards made by the Special Deputy Collector in respect of the aforesaid lands and requested the Special Deputy Collector to refer the question of compensation to Civil Court under s.18 of the Land Acquisition Act.
References were, accordingly, made and the Civil Court by its order dated March 6, 1967 enhanced the compensation awarded by the Special Deputy Collector in respect of Moosapet land by Rs. 1,90,000 and by its order dated October 30, 1967 enhanced the compensation in respect of Qutbillapur lands by Rs. 20,45,000.
The Government did not accept the decisions of the Civil Court and filed appeals to the High Court challenging the enhancement, which appeals are still pending in the High Court.
On receipt of information that enhanced compensation was awarded by the Civil Court in respect of the above lands the respondent issued two notices both dated November 14, 1969, one addressed to Mrs. Khorshed Shapoor Chenai and the other to Mrs. Freny Rashid Chenai.
The former notice was issued under section 59(a) of the Act calling upon Mrs. Khorshed Chenai to show cause why the estate duty assessment made on December 30, ]966 should not be reopened and revised in view of the extra compensations awarded by the Civil Court in respect of the lands acquired by the Government, while the latter notice was issued under section 61 of the Act requiring Mrs. Freny Chenai to show cause why the mistake apparent from the record should not be rectified and the enhanced compensation included in the principal value of the estate.
These notices were challenged by the recepients by filing writ petitions in the High Court.
The notice under section 59(a) of the Act issued for the reopening of the assessment completed on December 30, 1966 was challenged in 321 writ petition No. 54 of 1970 on two grounds: (a) that after compensation had been awarded by the Special Deputy Collector under section 11 of the Land Acquisition Act the heirs of the deceased Rashid had merely exercised a right to sue for further compensation which was merely a hope or a chance that the compensation might be enhanced, that such hope or chance could not be elevated to the status of an assets or property and as such not asset or property chargeable to estate duty had escaped assessment and (b) that even assuming that any asset or property chargeable to estate duty had escaped assessment the notice was illegal and without jurisdiction because such escapement was not due to any omission or failure on the part of the. accountable person to disclose fully and truly material facts necessary for making the assessment.
As regards the first ground, the High Court took the view that the right to receive compensation equivalent to market value of the lands on the dates of notifications which sprang directly from the acquisition was "property", that no fresh or independent right "to receive extra compensation" accrued to the heirs of the deceased and that since compensation awarded by Special Deputy Collector had been enhanced by Rs. 1,90,000 for the lands acquired for the Synthetic Drugs Project and by Rs. 20,45,000 for the lands acquired for the Hindustan Machine Tools by the Civil Court, these facts, which came into existence subsequent to the making of the original assessment, easily led to the conclusion that the values adopted by the respondent for these lands were far below their real and true market value and as such property (meaning lands) chargeable to estate duty having been under valued had escaped assessment of the duty.
On the second aspect the High Court held that the fact that land References were filed against the awards of the Special Deputy Collector under section 18 of the land Acquisition Act and were pending in the Civil Court was not disclosed by the account.
able person, that the said fact was a primary and material fact and not an inferential fact and its non disclosure amounted to omission or failure which could lead the assessing authority to a reasonable belief that property chargeable to estate duty had escaped assessment and as such the respondent had jurisdiction to issue the notice.
In this view of the matter, the High Court upheld the notice issued under section 59(a) of the Act and dismissed the writ petition.
This decision of the High Court is being challenged before us in Civil Appeal No. 2205 of 1972.
The issuance of the notice under section 61 of the Act was challenged in Writ Petition No. 4059 of 1969 principally on three grounds: (i) that the accountable person had only a claim lo get an extra compensation which was an inchoate right which could not be called 'property ' and whether that claim amounted to a right to property capable of sale in open market was a highly debatable question and a mistake which had 322 to be discovered after lengthy discussion and debate could not be said ' to be a mistake apparent on the record, (ii) that land acquisition proceedings and land References in Civil Court not being part of the assessment record a mistake discovered by reference to such other record was not a mistake apparent from the record of the case and (iii) that the extra compensation received by the legal heirs of Rashid belonged to them and not to the deceased and hence it was not property that passed on the death of the deceased and, therefore, no property escaped assessment.
In other words, under the guise of rectification, the enhanced compensation could not be taken into account and, therefore, the impugned notice was illegal and without jurisdiction.
The High Court negatived the contentions and upheld the impugned notice.
This decision is challenged in Civil Appeal No. 2206 of 1972.
Dealing first with C.A. No. 2205 of 1972, wherein the notice issued under s.59(a) of the Act has been challenged, counsel for the appellant raised three contentions against the view taken by the High Court.
At the out set counsel pointed out that so far as the estate duty assessment in respect of the properties passing on the death of Shapoor was concerned, the respondent as well as the High Court had proceeded on the wrong assumption that the acquired lands formed part of the estate of the deceased and passed on his death, for, it was on such basis that the High Court held that having regard to the enhanced compensation granted by the Civil Court for the lands such property (meaning lands) had been undervalued in the original assessment and as such it had escaped assessment to duty.
According to him the lands no longer formed part of the estate of the deceased at the date of his death, namely, on May 7, 1965, inasmuch as long prior thereto they had vested in the Government, and, therefore, it was merely the right to receive compensation, which, if at all, could constitute property passing on the death of the deceased., but he contended that during the lifetime of the deceased the lands in question had not merely been acquired but even the compensation as determined under the awards made by the Special Deputy Collector was paid to and received by the deceased and hence at the time of the death the initial right to receive compensation had already merged in those awards and the only right which the deceased had was the right to agitate against the correctness of the awards and nothing more and this right to claim further compensation was a precarious right, being merely a right to litigate a chancy and dicey right, which could not be elevated to the status of any asset or property and as such there was no question of any property having escaped the assessment to duty.
It was urged that such a right to further compensation would become property only when the claim would be accepted ' 323 finally by the Court and till the enhanced compensation became payable by reason of final adjudication of the Court no property could be said tc have come into existence and certainly it was not in existence at the date of death.
It was pointed out that against the decrees passed by the City Civil Court appeals had been preferred by the Government to the High Court and even the High Court 's decision might be carried in further appeal to this Court and, therefore, till the claim was finally accepted by the highest Court no property (enhanced compensation) could be said to have come into existence.
Counsel urged that it would run counter to all principles of direct taxation to regard the amount decreed subsequently by the final Court as property having come into existence retrospectively on the relevant date (being date of death under Estate Duty Act and valuation date under the Wealth Tax Act) though, in fact, it did not exist on that date, and in this behalf reliance was placed upon the decision of the Andhra Pradesh High Court in Khan Bahadur Ahmed Alladin & Sons.
vs Commissioner of Income tax, two decisions of the Calcutta High Court, namely, Commissioner of Wealth Tax, West Bengal (II) vs U.C. Mahatab and Commissioner of Income Tax, West Bengal II vs Hindustan Housing and Land Development trust Ltd. two decisions of the Gujarat High Court, namely, Topandas Kundanmal vs Commissioner of Income tax and Addl.
Commissioner of Income Tax, Gujarat vs New Jehangir Vakil Mills Co. Ltd. and one decision of the Kerala High Court in M. Jairam vs Commissioner of Income Tax, Kerala.
Secondly, counsel contended that assigning that the right to receive compensation survived and it was that right which was being prosecuted by the heirs of Rashid in Civil Court, the impugned notice had not been issued on the ground that such right to compensation had been undervalued on the earlier occasion and required to be properly valued as at the date of the death but the basis on which it was issued was clearly unsustainable in law P inasmuch as the respondent had issued it on the assumption that there had been escapement of assessment to duty because the lands in the original assessment had been undervalued in view of the glaring enhanced compensation awarded by the Civil Court, and the High Court 's decision upholding the issuance of such notice on the wrong basis was liable to be set aside.
Thirdly, counsel contended that seeking References under the Land Acquisition Act and their pendency in Civil 324 Court could not be said to be primary facts, non disclosure of which could amount to an omission or failure on the part of the accountable person resulting in escapement of assessment to duty.
On the other hand counsel for the Revenue pressed for our acceptance the view taken by the High Court.
He fairly conceded that the lands in question could not be regarded as forming part of the estate of the deceased on the relevant date inasmuch as the lands had vested in the Government long prior to the death of the deceased, but he contended that upon such acquisition of lands, the right to receive compensation at market value on the dates of the relevant notifications accrued to the deceased and such right was unquestionably property which would pass on the death of the deceased.
He disputed that this right to receive compensation got merged in the awards made by the Special Deputy Collector or that thereafter such right ceased to exist.
According to him if the awards made by the Special Deputy Collector had been acquiesced in and accepted without any protest by the deceased or his heirs, such right would have merged in the said awards, but where, as in the case here, the awards made by the Special Deputy Collector, which in law are nothing but offers made by the Government to the claimant, are not accepted or are accepted under protest and the claimant seeks land References in Civil Courts, the right to compensation must be regarded as having survived or kept alive by the claimants and it is that property (right to compensation) which will have to be evaluated by the assessing authority as; on the date of death.
According to him obviously this asset or property had not been correctly valued in the original assessment proceedings inasmuch as glaring enhancement had been granted by the Civil Courts in the land References and, therefore, there was escapement of assessment to duty, and hence the notice under section 59(a) of the Act should be regarded as having been issued properly.
Counsel further contended that the High Court had rightly taken the view that seeking References under the Land Acquisition Act and their pendency in Civil Court were primary facts which had not been disclosed by the accountable person during the original assessment and such non disclosure led to the reasonable belief that there was escapement of assessment to duty.
The impugned notice according to him, therefore, was relied and justified.
As stated above, so far as the estate duty assessment in respect of the properties passing on the death of Shapoor was concerned, counsel for the Revenue fairly conceded that the lands which were the subject matter of acquisition proceedings could not be regarded as forming part of the estate of the deceased on the relevant date and could not pass on his death inasmuch as those lands had vested in the Government 325 long prior to his death but the right to receive compensation at market value on the dates of the relevant notifications unquestionably accrued to the deceased which was property and it would be such property that would pass on the death of the deceased.
That such right is property is well settled and if necessary reference may be made to a decision of this Court in Pandit Lakshmi Kant Jha vs Commissioner of Wealth Tax, Bihar and Orissa, a case under the where it has been clearly held that the right to receive compensation in respect of the Zamindari estate which was acquired by the Government h , under the Bihar Land Reforms Act, 1950, even though the date of payment was deferred, was property and constituted an asset for the purpose of that taxing statute.
In other words, since the lands were lost to the estate of the deceased before the relevant date, namely, the date of death, it would be the right to receive compensation under the Land Acquisition Act that will have to be evaluated under the Estate Duty Act.
Counsel for the appellant did not dispute this position but he contended that no sooner the Collector (the Special Deputy Collector here in) made his awards determining the amounts of compensation payable to the claimants under sec.
11 of the Land Acquisition Act, the right to receive compensation must be regarded as having merged in the awards, the determination having been made by a statutory public official and what the claimants would be left with thereafter was merely a right to agitate the correctness of such determination and this right to claim further compensation being merely a right to litigate was no asset or property and further that such right would become asset or property only after the Civil Court finally adjudicated upon such claim.
The High Court, while negativing this contention, has held that the "right to receive extra compensation" was not a separate or different right independent of "the right to receive compensation".
It has observed thus: "The right to receive compensation for the lands acquired by the Government, at their market value at the date of the acquisition is one and indivisible right.
There is no right to 'receive compensation ' and a separate right to receive 'extra compensation '.
The only right is to receive the compensation for the lands acquired by the Government, which is the fair market value on the date of acquisition.
The argument of learned counsel that the right to receive extra compensation accrued when the Civil Court passed the order and not before does not merit acceptance.
The 326 so called right to receive extra compensation cannot be torn from or considered separately from the right to receive the market value of the lands acquired by the Government.
That right accrues to the owner of the lands as soon as the lands are acquired by the Government.
It is, therefore, difficult to accept the argument of the learned counsel for the petitioner that a fresh and an independent right to 'receive extra compensation ' accrue to the heirs of the deceased and that it was owned and possessed by the heirs of the deceased." In our opinion the High Court was right in holding that there are no two separate rights one a right to receive compensation and other a right to receive extra or further compensation.
Upon acquisition of his lands under the Land Acquisition Act the claimant has only one right which is to receive compensation for the lands at their market value on the date of the relevant notification and it is this right which is quantified by the Collector under s.11 and by the Civil Court under s.26 of the Land Acquisition Act.
It is true that under s.11 the Collector after holding the necessary inquiry determines the quantum of compensation by fixing the market value of the land and in doing so is guided by the provisions contained in sections 23 and 24 of Act the very provisions by reference to which the Civil Court fixes the valuation.
It is also true that the Collector 's award is, under s.12, declared to be, except as otherwise provided, final and conclusive evidence as between him and the persons interested.
Even so, it is well settled that in law the Collector 's award under s.11 is nothing more than an offer of compensation made by the Government to the claimants whose property is acquired (vide Privy Council decisions in Ezra vs Secretary of State for India and this Court 's decision in Raja Harish Chandra vs Dy.
Land Requisition Officer and Dr. G. H. Grant vs State of Bihar.
If that be the true nature of the award made by the Collector then the question whether the right to receive compensation survives the award must depend upon whether the claimant acquiesces therein fully or not.
If the offer is acquiesced in by total acceptance the right to compensation will not survive but if the offer is not accepted or is accepted under protest and a land reference is sought by the claimant under s.18, the right to receive compensation must be regarded as having survived and kept alive which the claimant prosecutes in Civil Court.
It is impossible to accept the contention that no sooner the Collector has made his award under s.11 the right to compensation is destroyed or ceases to exist or is merged in the award, or what is left 327 with the claimant is a mere right to litigate the correctness of the award.
The claimant can litigate the correctness of the award because his right to compensation is not fully redeemed but remains alive which he prosecutes in Civil Court.
That is why when a claimant dies in a pending reference his heirs are brought on record and are permitted to prosecute the reference.
This, however, does not mean that the Civil Court 's evaluation of this right done subsequently would be its valuation as at the relevant date either under the Estate Duty Act or the Wealth Tax Act.
It will be the duty of the assessing authority under either of the enactments to evaluate this property (right to receive compensation at market value on the date of relevant notification) as oh the relevant date (being the date of death under the Estate Duty and valuation date under the Wealth Tax Act).
Under s.36 of the Estate Duty Act the assessing authority has to estimate the value of this property at the price which it would fetch if sold in the open market at the time of the deceased 's death.
In the case of the right to receive compensation, which is property, where the Collector 's award has been made but has not been accepted or has been accepted under protest and a reference is sought or is pending in Civil Court at the date of the deceased 's death, the estimated value can never be below the figure quantified by the Collector because under section 25(1) or the Land Acquisition Act, Civil Court cannot award any amount below that awarded by the Collector; the estimated value may be equal to the Collector 's award or more but can never be equal to the tall claim made by the claimant in the Reference nor equal to the claim actually awarded by the Civil Court inasmuch as the risk or hazard of litigation would be a detracting factor while arriving at a reasonable and proper value of this property as on the date of the deceased 's death.
The assessing authority will have to estimate the value having regard to the peculiar nature of the property, its marketability and the surrounding circumstances including the link or hazard of litigation looming large at the relevant date.
The first contention of counsel for the appellant, therefore, fails.
The second contention urged by the counsel for the appellant, however, appears to us to be well founded and the impugned notice issued under s.59(a) of the Act will have to be quashed on that ground.
As we have said, above, since in the instant case the wards made by the Special Deputy Collector were not accepted by the heirs of the deceased and Land References were sought by them and the same were pending in Civil Court at the relevant date (being the date of Shapoor 's death) the notice under s.59(a) would have been valid if the same had been issued on the basis that such right to compensation had been undervalued on the earlier occasion and required to be properly valued as on 328 the date of the death, but what we find is that the said notice was issued by the respondent on the wrong assumption that the acquired lands still formed part of the estate of the deceased and that having regard to the glaring enhanced compensation granted by the Civil Court for the lands, the said lands had been undervalued in the original assessment and as such the same had escaped assessment to duty.
In the notice issued to the appellant under s.59(a) of the Act a bald statement was made by the respondent to the effect that he had reason to believe that property chargeable to estate duty (a) had escaped assessment and (b) had been under assessed, and, therefore, the appellant was called upon to deliver a further statement of Account.
By her Chartered Accountant 's letter dated December 15, 1969 the respondent was called upon to give the basis for his aforesaid belief, to which the respondent re plied on January 1, 1970 thus: "The extra compensations received by you in O. P. No. 325/65, O.P. No. 364/65, O.P. No. 29/64 and O.P. No. 30/64 relating to the land acquired by the Government escaped assessment.
In view of your failure to disclose full particulars to Department regarding the land acquisition proceedings in the Account filed by you, reassessment proceeding have been initiated under s.59(a) of the Estate Duty Act.
" The aforesaid communication clearly brings out the fact in the respondent 's view the extra compensation (meaning the enhanced amounts) received by the appellant under the Civil Court decrees in Land References had escaped assessment in the earlier assessment proceedings and since such escapement was due to the appellant 's failure to disclose full particulars regarding the land acquisition proceedings, the reassessment proceedings were being initiated.
In other words, the assessment was being reopened for the purpose of including the enhanced amounts received by the appellant is the principal value of the property passing on the death and assessing the same to duty and not for the purpose of evaluating the right to compensation which had been undervalued on the earlier occasion.
Further, as regards the basis on which the impugned notice had been issued the High Court took the following view while upholding the issuance of the notice: "Then, the next question that arises is whether such non disclosure resulted in an under valuation of the properties included in the account, and consequently there was an escapement of the property chargeable to the estate duty from assessment ? The compensation awarded by the Special Deputy 329 Collector has been enhanced by Rs. 20,45,000 in the case of lands acquired for H.M.T. and by Rs. 1,90,000 for the land acquired for the Synthetic Drugs Project.
Those facts which came into existence subsequent to the making of the assessment, lead to the conclusion that the values adopted by the Asst.
Controller of Estate Duty for those lands were far below their real and true market value.
" x x x x x x x x x x x x x x x x x x "In the instant case, the enhancement by the City Civil Court of the compensation awarded by the Special Deputy Collector was so large that no reasonable person could say that the values adopted by the Asst.
Controller of Estate Duty of those lands on the basis, of the awards made by the Special .
Deputy Collector, represented their true and correct market values.
No attempt has ever been made by the Accountable person to show that the values adopted by the Asst.
Controller Estate Duty represented their true and correct market values.
In those circumstances, an inevitable conclusion flows that there was under valuation of the properties which were included in the account.
" The aforesaid observations of the High Court as well as the contents of the communication sent by the respondent to the appellants representative on January 9, 1970, clearly suggest that the impugned notice had been issued on the basis that the acquired lands still formed part of the state of the deceased which passed on his death, that the valuation for those lands adopted on the earlier occasion which was on the basis of compensation awarded by the Special Deputy Collector did not represent their correct market value which was clear from the glaring enhanced compensation that was awarded by the Civil Court under its decrees in Land References and, therefore, such property had escaped assessment to duty.
In other words, the reassessment was intended to be undertaken with a view to include the enhanced amounts received by the appellant in the principal value of the property passing on death and bringing the same to duty.
We were informed at the Bar by counsel for the appellant that in the reassessment which was made pursuant to the impugned notice, the quantum of extra compensation decreed by the Civil Court was included in the assessment and brought to duty.
obviously, the impugned notice which was issued on a wrong basis and with the aforesaid objective and the subsequent reassessment made in pursuance thereof would be clearly illegal and unsustainable inasmuch 330 as the extra compensation awarded by the Civil Court taken with the, original compensation awarded by the Special Deputy Collector cannot be regarded as proper evaluation of the right to receive compensation as on the date of the death of the deceased.
Proposed as well as actual inclusion of such extra compensation awarded by the Civil Court in the principal value of the estate passing on the death of the deceased would be manifestly wrong for more than one reason.
In the first place the said property, namely, the enhanced compensation was not in existence 1.
at the date of the death of the deceased.
Secondly, such extra compensation awarded by the City Civil Court was liable to variation in the appeals that were pending in the High Court.
Thirdly), as discussed above, such extra compensation together with the compensation awarded by the Special Deputy Collector could not be regarded as the proper valuation of the right to compensation as on the relevant date (the date of the deceased 's death).
In our view, therefore, the very issuance of the notice under s.59(a) which was done on a basis clearly unsustainable in law is liable to be quashed on this ground.
Consequently, reassessment which has been made by the Respondent, is also liable to be quashed.
In view of the aforesaid conclusion, it is unnecessary for us to deal with the last contention urged by the counsel for the appellant that seeking of land References and their pendency in Civil Court were not primary facts but inferential facts and non disclosure thereof would not amount to failure or omission on the part of the accountable person to disclose full particulars leading to escapement of assessment to duty.
In the result the appeal is allowed and the impugned notice issued under s.59(a) of the Act as also the subsequent reassessment made are quashed.
The Revenue will pay the costs of the appeal to the appellant Turning to Civil Appeal No. 2206 of 1972, counsel for the appellant challenged the impugned notice issued under s.61 of the Act on two grounds: (a) it was case of change of opinion as regards the valuation of lands acquired and not a case of mistake apparent from the record and as such the impugned notice was issued under s.61 with a view to get over the bar of limitation under s.73A, which would otherwise be applicable to a notice under s.59(a) of the Act and (b) that for purposes of section 61 the land acquisition proceedings and Land References in the Civil Court could not be regarded as part of the assessment record and he so called mistake discovered by reference to such other record was not a mistake apparent from the record of the case and as such the 331 impugned notice was liable to be quashed.
In our view, the first ground is sufficient to dispose of the appeal.
The impugned notice dated November 14, 1969 in terms recites that the assessment in this case was completed on March 29, 1966 on a net principal value of Rs. 23,53,064 (which included the value of the acquired lands at rates fixed by the Land Acquisition officer) with a duty worked out at Rs. 5,07,919.20, that it was then learnt that in respect of the acquired lands the Civil Court had enhanced the compensation fixed by the Land Acquisition officer and had ordered payment thereof with interest at 4% (particulars whereof were specified) and that, therefore, the respondent proposed "to rectify the assessment under section 61 as mistake apparent from the record and adopt the above enhanced compensation awarded by the Court".
It is thus clear that the rectification is being undertaken on the ground that the initial valuation adopted in respect of the acquired lands was based at rates fixed by the 'Land Acquisition.
Officer, that such valuation was obviously wrong in view of the enhanced compensation awarded by the , Civil Court and, therefore, the enhanced compensation was sought to be included in the principal value of the estate by undertaking the rectification proceedings.
In substance it cannot be said to be a case of rectification of any mistake apparent from the record but the respondent is really seeking to change his opinion about the valuation of the acquired lands because some other authority, namely the Civil Court has valued the same differently.
Now, for the purpose of enhancing the value of the acquired lands on the.
basis of their value. as determined by the Civil Court the respondent must resort to provisions of section 59 and proceed to make reassessment but such reassessment has to be done within the period of three years from the date of the original assessment under section 73 A of the Act.
It seems to us that in the instant case the respondent resorted to s.61 because the rectification of any mistake apparent from the record could be done at any time within five years from the date of the original assessment.
In Ethel Rodrigues vs Assistant Controller of Estate Duty, Estate Duty, Estate Duty cum Income tax Circle, Mangalore, on similar facts when the Assistant Controller of Estate Duty, Bangalore had issued a notice purporting to act under s.61 of the Act on the ground that the estate had been valued at an enhanced figure in the probate proceedings and had in proceedings undertaken pursuant to such notice enhanced the valuation of the estate in accordance with its valuation placed on the estate in the probate proceedings and consequently enhanced the estate duty, this Court quashed the order of rectification.
The principle enun 332 ciated by this Court in that case has been succinctly summarised in the head note thus: "Where the Controller has made his own valuation of the estate of a deceased person under section 36 of the , he has no jurisdiction to rectify the assessment under section 61 on the ground that the estate has been taken at an enhanced value in the probate proceedings.
taking the enhanced value put upon the estate in the probate proceedings he cannot be said to rectify any mistake apparent from the record of the estate duty assessment but he would be changing his opinion about the valuation of the valuation of cause some other authority has valued the estate differently.
For the purpose of section 61, the only record that the assessing authority can look into is the record relating to the assessment of estate duty and not any other record such as the be cord in the probate, proceedings which is not relevant.
For the purpose of enhancing the value an estate on the basis of the value taken in the probate proceedings the Controller has to.
invoke the Provisions of section 59 and proceed to reassess and for such a reassessment the bar provided in section 73 A will operate.
" In our view, the facts of the instant case clearly come within the ratio of the aforesaid decision.
The High Court has attempted to distinguish the above decision by stating that in the instant case the res respondent had merely accepted the value of the acquired lands as determined by the Special Deputy Collector in his award and the accountable person had no objection to this course and, therefore, the respondent himself did not estimate the market value of the lands on the date of death of Rashid and as such it was not a case of change of opinion on his part as regards the correct valuation of the lands.
It is difficult to accept this view.
It cannot be disputed that when the original assessment was made it was the duty of the respondent, after scrutinising the Account filed and examining the materials produced before him, to value the estate of the deceased properly under s.36 of the Act and when he accepted the compensation fixed by the Special Deputy Collector as the proper valuation he must be deemed to have adopted that evaluation as his own estimated value of the lands which he wanted to enhance by relying upon the valuation made by the another authority, namely, the City Civil Court.
To such a case s.59 is clearly attracted but obviously with a view to avoid the bar of section 73 A he purported to.
issue the impugned notice under s.61 and therefore the same is liable to be quashed.
The aforesaid decision seems to lend support to the 333 second ground urged by counsel for the appellant for quashing the impugned notice but we would like to base our decision on the first ground discussed above.
In this case also we are told that the rectification proceedings have been completed pursuant to the impugned notice, which also must be quashed.
In the result, the notice under s.61 of the Act and the rectification order passed in pursuance thereof are quashed.
The Revenue will pay the costs of the appeal to the appellant.
V.D.K. Appeals allowed.

Output:
The Andhra Pradesh Government acquired the lands belonging to one Rashid Shapoor Chenai and situate at Moosapet Village Hyderabad and Qutbillapur in Medchal district.
The special Deputy Collector of Land Acquisition awarded a total compensation of Rs. 20,000 and Rs. 4,29,360 respectively.
The compensation of Rs. 20,000 was paid during the life time of Rashid and the compensation of Rs. 4,29,360 was paid after Rashid 's death to his widow Mrs. Freny Chenai and son Shapoor Rashid Chenai on whom the estate of Rashid devolved in equal shares.
On the death of Rashid on November 4, 1963, Mrs. Freny Chenai (appellant in CA 2206/72) as his widow and 'accountable person ' filed before the Respondent on December 26, 1963 an account of the properties passing on the death of her husband under section 53(3) of the Act.
The estate duty assessment was completed by the respondent on March 29, 1966.
With regard to the lands acquired both during the lifetime of Rashid as well as after, their values were taken at the respective figures of compensation (Rs. 20,000 and Rs. 4,29,360) awarded for them by the special Deputy Collector.
Shapoor Rashid Chenai, who had one half share in the undivided estate of his late father Rashid died on May, 7, 1965.
As required by section 53 of the Act Mrs. Khorshed Chenai (appellant in CA 2205/72) as his widow and the 'accountable person 's filed before the respondent on November 6, 1965 an account of the properties passing on the death of her husband and the respondent completed the estate duty assessment on December 30, 1966.
Even here.
the respondent adopted the values of the lands acquired by the Government at figures awarded by the special Deputy Collector.
The legal heirs of late Rashid did not accept the awards by the special Deputy Collector in respect of the lands acquired by Government and a reference was made to Civil Court under section 18 of the Land Acquisition Act.
The Civil Court, by its orders dated March 6, 1967/Oct. 30, 1967 enhanced the compensation awarded by the special Deputy Collector by Rs. 1,90,000 in respect of Moosapet lands and by Rs. 20,45,000 in respect of Qutbillapur Lands.
The Government did not accept the decisions of the Civil Court and filed appeals to the High Court challenging the enhancement, which appeals are still pending in the High Court.
316 On receipt of information that enhanced compensation was awarded by the Civil Court in respect of the above lands the respondent issued two notices both dated November 14, 1969, one addressed to Mrs. Khorshed Shapoor Chenai and the other to Mrs. Freny Rashid Chenai.
The former notice was issued under section 59(a) of the Act calling upon Mrs. Khorshed to show cause why the Estate Duty assessment made on December 30, 1966 should not be reopened and revised in view of the extra compensations awarded by the Civil Court in respect of the lands acquired by the Government, while the latter notice was issued under section 61 of the Act requiring Mrs. Freny Chenai to show cause why the mistake apparent from the record should not be rectified and the enhanced compensation included in the principal value of the estate.
These notices were challenged by the recipients by filing writ petitions in the High Court.
The High Court negatived the contentions raised in both the writ petitions upheld the impugned notices and dismissed the writ petitions.
Hence the two appeals by certificates.
Allowing the appeals, the Court, ^ HELD: 1.
So far as the estate duty assessment in respect of the properties passing on the death of Shapoor was concerned, the lands which were the subject matter of acquisition proceedings could not be regarded as forming part of the estate of the deceased on the relevant date and could not pass on his death in as much as these lands had vested in the Government long prior to his death but the right to receive compensation at market value on the dates of the relevant notifications unquestionably accrued to the deceased which was property and it would be such property that would pass on the death of the deceased.
In other words, since the lands were lost to the estate of the deceased before the relevant date, namely, the date of death, it would be the right to receive compensation under the Land Acquisition Act that will have to be evaluated under the Estates Duty Act.
[324 G H, 325 A, C] Pandit Lakshmi Kant Jha vs Commissioner of Wealth Tax, Bihar and Orissa, , applied.
There are no two separate rights one a right to receive compensation and other a right to receive extra or further compensation.
Upon acquisition of his lands under the Land Acquisition Act the claimant has only one right which is to receive compensation for the lands at their market value on the date of the relevant notifications and it is this right which is quantified by the Collector under section 11 and by the Civil Court under section 26 of the Land Acquisition Act.
It is true that under section 11 the Collector after holding the necessary inquiry determines the quantum of compensation by fixing the market value of the land and in doing so is guided by the provisions contained in sections 23 and 24 of the Act the very provisions by references to which the Civil Court fixes the valuation.
It is also true that the Collector 's award is, under section 12, declared to be, except as otherwise provided, final and conclusive evidence as between him and the persons interested.
Even so, it is well settled that in law the Collector 's award under section 11 is nothing more than an offer of compensation made by the Government to the claimant whose property is acquired.
If that be the true nature of the award made by the Collector then the question whether the right to receive compensation survives the award must depend upon whether 317 the claimant acquiesces therein fully or not.
If the offer is acquiesced in by total acceptance the right to compensation will not survive but if the offer is not accepted or is accepted under protest and a land reference is sought by the claimant under section 18, the right to receive compensation must be regarded as having survived and kept alive which the claimant prosecutes in Civil Court.
[326 B G] Ezra vs Secretary of State for India ILR ; Raja Harish Chandra vs Dy.
Land Requisition Officer, and Dr. G. H. Grant vs State of Bihar ; , followed.
It is not correct that no sooner the Collector has made his award under section 11 the right to compensation is destroyed or ceases to exist or is merged in the award, or what is left with the claimant is a mere right to litigate the correctness of the award.
The claimant can litigate the correctness of the award because his right to compensation is not fully redeemed but remains alive which he prosecutes in Civil Court.
That is why when a claimant dies in a pending reference his heirs are brought on record and are permitted to prosecute the reference.
This, however, does not mean that the Civil Court 's evaluation of this right done subsequently would be its valuation as at the relevant date either under the Estate Duty Act or the Wealth Tax Act.
It will be the duty cf the assessing authority under either of the enactments to evaluate this property (right to receive compensation at market value on the date of relevant notification) as on the relevant date (being the date of death under the Estate Duty and Valuation date under the Wealth Tax Act).
Under section 36 of the Estate Duty Act the assessing authority has to estimate the value of this property at the price which it would fetch if sold in the open market at the time of the deceased 's death.
In the case of the right to receive compensation, which is property, where the Collector 's award has been made but has not been accepted or has been accepted under protest and a reference is sought or is pending in Civil Court at the date of the deceased 's death the estimated value can never be below the figure quantified by the Collector because under section 25(11 of the Land Acquisition Act.
Civil Court cannot award any amount below that awarded by the Collector; the estimated value may be equal to the Collector 's award of more but can never be equal to the tall claim made by the claimant in the Reference nor equal to the claim actually awarded by the Civil Court inasmuch as the risk or hazard of litigation would be detracting factor while arriving at a reasonable and proper value of this property as on the date the deceased 's death.
The assessing authority will have to estimate the value having regard to the peculiar nature of the property, its marketability and the surrounding circumstances including the risk or hazard of litigation looming large at the relevant date.
[326 H, 327 A F] 4.
The very issuance of the notice under section 59(a) was on a wrong basis; It was issued with the object to include the enhanced amounts received by the appellant in the principal value of the property passing on the death of Shapoor and bringing the same to duty; such notice and the subsequent reassessment made in pursuance thereof would be clearly illegal and unsustainable inasmuch as the extra compensation awarded by the Civil Court taken with the original compensation as on the date of the death of the deceased.
Proposed as well as actual inclusion of such extra compensation awarded by the Civil Court in the principal value of the estate passing on the death of the deceased would be manifestly wrong for more than one reason.
In the first place the said property.
namely, the enhanced compensation was not in existence at the 318 date of the death of the deceased.
Secondly, such extra compensation awarded by the City Civil Court was liable to variation in the appeals that were pending in the High Court.
Thirdly, such extra compensation together with the compensation awarded by the Special Deputy Collector could not be regarded is the proper valuation of the right to compensation as on the relevant date (the date of the deceased 's death).
[330 A D] 5.
The notice under section 61 of the Act and the rectification order passed in pursuance thereof if illegal and unsustainable.
[333 E] (i) The rectification is being undertaken on the ground that the initial valuation adopted in respect of the acquired lands was based at rates fixed by the Land Acquisition officer, that such valuation was obviously wrong in view of the enhanced compensation awarded by the Civil Court and, therefore, the enhanced compensation was sought to be included in the principal value of the estate by undertaking the rectification proceedings.
In substance it cannot be said to be a case of rectification of any mistake apparent from the record but the respondent is really seeking to change his opinion about the valuation of the acquired lands because some other authority, namely, the Civil Court has valued the same differently.
[331 C E] (ii) For the purpose of enhancing the value of the acquired lands on the basis of their value as determined by the Civil Court the respondent must resort to provisions of section 59 and proceed to make reassessment but such reassessment has to be done within the period of three year from the date of the original assessment under section 73A of the Act.
In the instant case the respondent resorted to section 61 because the rectification of any mistake apparent from the record could be done at any time within five years from the date of the original assessment.
[331 E.F] (iii) When the original assessment was made it was the duty of the respondent, after scrutinising the account filed and examining the materials produced before him, to value the estate of the deceased properly under section 36 of the Act and when he accepted the! compensation fixed by the special Deputy Collector as the proper valuation he must be deemed to have adopted that valuation as his own estimated value of the lands which he wanted to enhance by relying upon the valuation made by the another authority, namely, the City Civil Court.
To such a case section 59 is clearly attracted but obviously with a view to avoid the bar of section 73A he purported to issue the impugned notice under section 61.
[332 F H] Ethel Rodriques vs Assistant Controller of Estate Duly, Estate Duty cum Income Tax Circle, Mangalore, [1963] 49 I.T.R. (E.D.) 128, applied.


Input:
ON: Criminal Appeals No. 28 to 31 of 1955.
Appeals by special leave from the judgment and order dated the 11th February, 1953 of the Hyderabad High Court in Criminal Appeals Nos. 1260 to 1263 of 1951/1952 arising out of the judgment and order dated the 6th November, 1951 of the Court of the Sessions Judge at Warangal in Original Criminal Case No. 127 of 1950.
H. J. Umrigar, for appellant No. 1.
K. R. Choudhry, for appellants Nos. 2 to 4.
Porus A. Mehta and P. G. Gokhale, for the respondent.
March 14.
The Judgment of the Court was delivered by CHANDRASEKHEARA AIYAR J.
The four appellants and two others named Sheshaya and Pitchi Reddy, who are all communists, were charged with the murder of one Venkatakrishna Shastry who was a Congress worker or leader.
The appellants were convicted of the offence but the other two were acquitted by the Sessions Judge, Warangal, Hyderabad State, on the astounding ground that no overt acts were proved against them.
The appellants preferred appeals to the High Court at Hyderabad and there was the usual reference for confirmation of the death sentences imposed on them.
The appeals were heard by a Bench consisting of Deshpande J. and Dr. Mir Siadat Ali Khan J. and 249 they disagreed with each other.
Deshpande J. held that the evidence did not establish the guilt of the appellants and be acquitted them.
On the other band, Dr. Mir Siadat Ali Khan came to the conclusion that the prosecution had established its case beyond reasonable doubt.
He confirmed the convictions but reduced the sentences to imprisonment for life.
Owing to this difference of opinion, the matter was referred to a third Judge, Manohar Pershad J. and be agreed with the finding of guilty given by his learned bro ther Dr. Mir Siadat Ali Khan.
We granted special leave to the appellants to come before this court.
The facts of the occurrence, as alleged by the prosecution, are these.
On the evening of 19 1 1949, the deceased Venkatakrishna Shastry of the village of Maturpeta and five other persons, who were Congress workers like him, were returning to the village from a tank.
One of the communist leaders called Nagabhushan Rao had been arrested a month or two previously and the communist party believed that Venkatakrishna Shastry was responsible for the arrest.
So a large group of communists, about 25 or 30 in number including the accused, armed with guns and swords, paid a visit to Maturpeta to wreak vengeance against the Congress group led by Venkatakrishna Shastry.
They ran into the Congress group as they were getting back to the village after the evening stroll.
P.W. 14, a dhobi boy named Gopai was one of the camp followers of this communist group.
Venkatakrishna Shastry and his co workers were tied up with their own clothes and were led to the village chavadi over which a Congress flag was flying.
A rope was brought from the house of P. W. 17 and the members of the Congress group were tied with this rope and led some distance away from the village to a red gram field, and all of them were beaten by their enemies; except Shastry, the rest were driven away from the place.
Shastry was tied with the rope and taken in the eastern direction by Mangapaty (the dalam or troup leader) and the accused.
P. W. 14 was following the group carrying a bundle of their clothes on his head.
After a short halt at the village of 250 Suknevedu, where some food was taken, the party went towards a mango tope near a brook, four or five miles away leading Venkatakrishna Shastry as the captive.
The deceased, Gopai (P.W. 14) and some of the accused remained on the bank of the brooklet.
The others went a little beyond and one of them came back with orders that Venkatakrishna Shastry should be fetched.
Venkatakrishna Shastry was taken along and when the moon was at the meridian, the rope with which he was led was tied round the neck of the deceased into a noose.
Two of the accused pulled one end of the rope and two others at the other end in opposite directions.
Venkatakrishna Shastry was thus strangled to death.
A pit was dug and the body of Venkatakrishna Shastry was buried in the river bed.
P.W. 14 saw all this from a distance of twenty yards in clear moonlight.
Two or three days later, after some wanderings in the jungle and mountain dens P.W. 14 left the company of his masters who were implored by the boy 's father P.W. 7 to permit him to take the boy away.
Next morning a report was sent by P.W. 2 the police patel about the abduction of Venkatakrishna Shastry and investigation was begun.
On 8 2 1949, that is about twenty days after the occurrence, some bones of a human body were discovered in the riverbed as the result of crows and vultures hovering round the place.
The police Patwari (P.W. 10) sent a report about this discovery.
The police arrived on the scene and exhumed the body which was identified as that of Venkatakrishna Shastry.
This was on 9 2 1949.
It was sent for postmortem examination.
The condition in which the body was at the time of exhumation is stated in a panchnama that was then prepared.
The results of the postmortem examination are spoken to by the doctor P.W. 7.
Being the only witness for the commission of the crime, the dhobi boy (P.W. 14) was subjected to severe criticism by Mr. Umrigar who held the dock brief for the appellants.
He described him as an accomplice and as an unmitigated liar and he asked us not even to look at his evidence.
P.W. 14 does not satisfy the 251 definition of an accomplice; he falls somewhat short of the requirements which would confer on him this status.
According to the evidence, he left his parents ' roof after a quarrel with his father and while wandering in the jungles he was picked up by the communists only 3 days before and taken as their servant on promise to give him food.
His main duty appears to have been to go with the group carrying their bundles of clothes on his head.
It was in this capacity that he was not only able to see the abduction of the deceased but also to witness the actual murder.
He took no part whatever in the commission of the offence or in any active or passive preparations for the same.
He was not a particeps crimines.
After securing his release from his temporary masters, he went back with his father to the village.
It is true he did not divulge the secret of the murder to any one else except to his own father.
But who would, in view of the atrocities and terrorism that prevailed in that region during the relevant time? It required a very courageous man to have proclaimed the truth, needless of consequences to himself, And we cannot credit the dhobi boy with so much of fearlessness.
The learned counsel urged that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded in law as an accomplice and that he could be put in the dock with the actual criminals.
There is, however, no warrant for such an extreme proposition.
On the other hand, the following short passage from Russell on Crime, 10th Edition, page 1846, will show its untenability: "But a person may be present, and, if not aiding and abetting, be neither principal nor accessory; as, if A, happens to be present at a murder and takes no part in it, nor endeavours to prevent it, or to apprehend the murderer, this course of conduct will not of itself render him either principal or accessory".
Indeed, there can be no doubt that the evidence of a man like P.W. 14 should be scanned with much caution and we must be fully satisfied that he is a witness of truth, especially when no other person 252 was present at the time to see the murder.
Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking the truth.
Such corroboration need not, however, be on the question of the actual commission of the offence;, if this was the requirement, then we would have independent testimony on which to act and there would be no need to rely on the evidence of one whose position may, in this particular case, be said to be somewhat analogous to that of an accomplice, though not exactly the same.
What the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness.
In the leading case of Rex vs Baskerville(1) it was pointed by Lord Reading C.J. that "the corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.
The nature of the corroboration will depend on and vary according to the particular circumstances of each case.
What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it.
Judged by this test, we can say that the evidence given by P.W. 14 has been amply corroborated.
It was not disputed for the appellants that there is abundant evidence consisting of the testimony of several witnesses in support of the truth of the narrative given by P.W. 14 regarding the abduction of the deceased.
This evidence was given not by mere onlookers but by men like P.Ws. 3, 4, 5, 6 and 9, who were with the deceased when the communist group came upon them and who were themselves badly beaten up by the gang before being released from, impending death at the merciful intervention of (1) [1916] 2 K.B.D. 658 253 some one of them.
They say that at the time of the release the accused retained the deceased with them and took him away in the direction of Mulgupad.
From this stage, P. W. 14 takes us to the river bank where the deceased and he were allowed to sit.
The accused went into the river bed and later on orders were issued by the appellant No. 1, the deceased was led by a rope from the bank by Muthyalu (4th appellant).
The rope was tied round the neck of the deceased into a noose and pulled in opposite directions by two of the accused on each side and Shastry was thus strangled to death.
His body was buried in a pit dug in the river bed.
The rope which was found round the neck of the dead body when it was exhumed is said to be the rope with which P.Ws. 3 to 6 and 9 were tied up and as the one that the members of the gang brought from the house of Silam Brahmareddi (P.W. 17) earlier that evening when the village was raided and the Congress workers were marched to the Congress flag.
There is also evidence that the party of the accused when they first encountered the party of the deceased asked who and where was Venkatakrishna Shastry.
The assailants, who were armed to the teeth, indulged in threats to kill all of them.
The deceased was a Congress leader and it is not surprising that he was singled out for terrific punishment, while the others were let off with a good thrashing and admonitions that they should give up their Congress affi liations.
It is but natural in the circumstances that they should take away the deceased to a distant place to do away with him.
That he was so led by the group of the accused is also corroborated by the evidence of Yesob (P.W. 12) who was watching his jawar crop on the night in question in a neighbouring field.
Let us now turn to the exhumation of the dead body, the inquest report, the postmortem certificate, and the evidence of the doctor (P. W. 7).
The patwari of Sakrivedu (P.W. 10) sent a report on the 8th February, 1949, that he had information that a dead body lay buried in the river bed.
The report has not 254 been filed but its purport about the condition of the body is given in the inquest report as unidentifiable.
Two police sub inspectors and some constables reached the river bed the same day and exhumed the body.
Its then condition is described in these words in the inquest report: "It was noticed that a rope of Chinna and Ambara was wrapped from neck to the waist.
Both hands were missing and out of the two legs one was attached to the body with little flesh.
The bones of the other separated leg (the down part of the knee) and the bones of one hand were found in the pit.
There were some hairs in the head.
The flesh of the face was rotten and decayed.
Teeth are safe and sound.
There is rotten flesh from the neck to the buttocks.
It appears that this dead body is of a Hindu Brahmin".
The panchnama is signed by two persons, one of whom HAS BEEN EXAMINED AS P.W. 16.
He, along with the witnesses who gave evidence as co sufferers with the deceased in the communist raid of that evening, have identified the body as that of Venkatakrishna Shastry.
The doctor 's postmortem certificate is exhibit 2 and according to it the body was petrified and even the marks of strangulation could not be detected; both the palms had been cut out, the left hand was severed completely; there was only the left eye in a rotten condition; the right eye was not found, the right ear was not there.
Examined as P.W. 7, the doctor has said that the face of the corpse could not be identified, as the scalp was eaten away by mud, and the bony structure of the face was present.
In the face of this evidence, the learned counsel for the appellants contended with much force that identification must have been impossible and that the witnesses who speak to the same should be disbelieved.
Two factors are,, however, overlooked in this argument.
Though the body was in an advanced state of decomposition and many parts of the limbs were missing and even the flesh in the face was gone, it would not have been difficult for close associates of 255 Venkatakrishna Shastry to say that it was his corpse, from the general features form, outline, contour build of the body, and the appearance of such of the limbs as were available to see.
His friend Madhusudhana Rao, P.W. 15, was working with the deceased for some years in the Congress office and knew him well indeed.
There is his evidence about identification.
More important still is the identification of the rope round the neck of the body, the dhoti with the violet border that was on its waist, and the janjam or the holy thread.
The rope was brought from the house of Brahma Reddy (P.W. 17).
It was the one which was tied in loops round each member of the Congress group as they were led from the village to the redgram field; it was the rope that was used to lead Venkatakrishna Shastry to the brooklet; and it was the rope that was found round the neck of the dead body when it was unearthed.
The bordered dhoti which was on the corpse belonged to Venkatakrishna Shastry.
From these external marks, and the general features, friends of the deceased like P.Ws. 3 to 6 and 9 and P.W. 17 in whose house Shastry was living could say, we think, that the body buried in the waist deep pit in the bed of the river was that of Venkatakrishna Shastry.
Whether he is regarded as an accomplice or as the sole witness of the offence P.W. 14 has been corroborated in such a manner that his evidence about the steps taken by the accused immediately prior to the perpetration of the murder carries conviction to our minds.
The connection of the accused with the crime must be held to have been made out.
We have also to accept that the dead body recovered was that of Venkatakrishna Shastry and no question of the absence of the body arises.
For this gruesome and revolting murder the appellants have got only imprisonment for life for which they must be thankful to the difference of opinion that arose among the learned Judges of the High Court.
The appeal fails and is dismissed.

Output:
There is no warrant for the extreme proposition that if a man sees the perpetration of a crime and does not give information of it to anyone else, he might well be regarded in law as an accomplice and that he could be put in the dock with the actual criminals.
A person may be present, and, if not aiding and abetting, be neither principal nor accessory; as, if A, happens to be present at a murder and takes no part in it, nor endeavours to prevent it, or to apprehend the murderer, this course of conduct will not of itself render him either principal or accessory.
Russell on Crime, 10th Edition, p. 1846, referred to.
33 248 In the matter of corroboration of the evidence of a single witness against the accused what the law requires is that there should be such corroboration of the material part of the story connecting the accused with the crime as will satisfy reasonable minds that the man can be regarded as a truthful witness.
The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.
The nature of the corroboration will depend on and vary according to the particular circumstances of each case.
Rex vs Baskerville (1916) 2 K.B.D. 658, referred to.


Input:
Civil Appeal No. 128 of 1971.
Appeal by special leave from the judgment and order dated the 19th September, 1969 of the Orissa High Court in O.J.C. No. 1759 of 1969.
Govind Das, for the appellants.
Ex parte for the respondents.
The Judgment of the Court was delivered by JASWANT SINGH, J.
This appeal by special leave is directed against the judgment and order dated September 19, 1969, of the Orissa High Court in o.
J.C. No. 1759 of 1968 allowing the writ petition filed by respondents 1 to 3 herein and quashing the orders.
dated May 2, 1967, July 22, 1968, and December S, 1968, passed under sections 27 and 68 of the Orissa Hindu Religious Endowment Act 1951 (Orissa Act II of 1952) hereinafter referred to as 'the Act;.
Briefly stated, the facts giving rise to this appeal are: on June 23, 1966, about 40 villagers of village Bantala in Nayagarh Sub Division of Puri District filed an application before the Assistant Commissioner of Endowments Orissa, for appointment of nonhereditary trustees under section 27 of the Act of Shiva Temple known as "Sri Lokenatheshwar Mahadev" situate in the said village alleging that villagers from 11 villages worshipped and offered 'bhog ' to '`Lokenatheshwar Deb ' installed in the temple which is more than hundred years old and possessed about 24 acres of land endowed by The ancestors of the villagers; that a new temple in place of the old one which was in a dilapidated condition had been constructed with the labour and money contributed by the villagers.
that marfatdars, respondents l to 3 herein, were mismanaging the affairs of the institution and were not regularly performing the seva and puja etc.
of the said deity.
On July 31, 1966.
the said respondents were directed to submit returns as required under section 17 of the Act.
On August 4, 1966, the Inspector of Endowments was directed to make an enquiry and to submit a report regarding the allegations made by the said villagers; Pursuant to the said directions, the Inspector submitted his report on September 6, 1966, stating inter alia that the.
437 temple was a public temple which had been recently constructed by the villagers and marfatdars; that the villagers of Bantala an marfatdars came from one family and the persons managing the institution did not receive notice from him nor showed him the accounts and suggesting the names of five persons for appointment as trustees.
On November 4, 1966, a proclamation inviting objections regarding the suitability of persons suggested by the Inspector for appointment as non hereditary trustees was issued to which the aforesaid respondents objected claiming that the institution was a private one and even if it be held to be a public religious institution, they were the hereditary trustees.
After making a summary enquiry in the presence of the villagers including respondents 1 to 3, the Additional Assistant Commissioner of Religious Endowments passed an order on May 2. 1967, holding C that the institution was a public one and appointing five non hereditary trustees under section 27 of the Act.
The Additional Assistant Endowments Commissioner did not, however, record any finding whether the respondents 1 to 3 were hereditary trustees or not.
Aggrieved by this order, respondents 1 to 3 preferred on May 15.
1967 a revision application under section 9 of the Act before the 1 Commissioner of Hindu Religious Endowments, Orissa, Bhubaneswar.
On May 27, 1967, the appointed trustees filed a petition under section 68 of the Act for obtaining possession of the institution and its endowments from respondents 1 to 3.
On November 10.
1967, respondents 1 to 3 filed a petition under section 41 of the Act claiming that the institution was a private one.
It was alternatively claimed by the said respondents that even if the temple be held to be a public one they could not but be held to be hereditary trustees.
On July 22, 1968, an order directing delivery of possession of the institution and its endowments to the appointed trustees was passed under section 68 of the Act by the Assistant Commissioner of Endowments, Orissa.
On December S, 1968, the aforesaid revision application filed by respondents 1 to 3 was dismissed by the Commissioner of Hindu Religious Endowments and the Inspector of Endowments was directed to execute the writ of delivery of possession.
On December 26, 1968, the Inspector of Endowments made a report saying that the writ had been executed and possession as directed had been delivered to the appointed trustees on December 11, 1968.
On December 23, 1968 respondents 1 to 3 filed a petition under Articles 226 and 227 of the Constitution, being O.J.C. No. 1759 of 1968, before the High Court of Judicature, Orissa, challenging the aforesaid orders dated May 2, 1967, July 22, 1968 and December S, 1968 and praying that the said orders be quashed.
on the said writ petition, it was contended by respondents 1 to 3 that the aforesaid orders dated May 2, 1967 passed by the Additional Assistant Endowments Commissioner appointing non hereditary trustees of the institution under section 27 of the Act and order dated July 22.
1968 passed by the Assistant Endowments Commissioner directing delivery of possession of the institution and its properties to the non hereditary 438 trustees under section 68 of the Act encroached upon the property rights of the respondents and were without jurisdiction and void having been passed without determining under section 41 of the Act as to whether the institution was a private or a public one and without further determining as to whether the respondents were hereditary trustees.
The said writ petition was contested on behalf of the appellants on the grounds that the scheme of the Act showed that provisions of section 27 of the Act were independent; that the exercise of` the power under section 27 was subject to final decision m appropriate proceedings under section 41 of the Act and that it was erroneous to contend that the provisions of section 27 could not be invoked without prior determination of the aforesaid questions under section 41 of the Act.
lt was, however, conceded on behalf of the appellants at the hearing of the writ petition before the High Court that the impugned orders could not be supported and were liable to be quashed as even a summary enquiry had not been made before appointment of non hereditary trustees under section 27 of the Act.
It was also conceded on behalf of the appellants that as an order under section 27 encroached upon the property rights of respondents 1 to 3 and even a summary 1) enquiry is required to be made by observing the principles of natural justice, the said respondents should have been given a full opportunity to substantiate their case to the effect that the institution and its properties were private and they were hereditary trustees.
It was, however, strongly contested on behalf of the appellants that the stand of respondents 1 to 3 that the orders dated May 2, 1967 and July 22, 1968 could not be passed without prior determination of the aforesaid questions under section 41 of the Act was not correct.
After examining the relevant provisions of the Act and the Rules and taking into account the , fact that respondents 1 to 3 had not been afforded an opportunity to substantiate their case and no evidence had r been taken by the Assistant Endowments Commissioner which might have prima facie gone to show that the institution was a public one and the said respondents were not hereditary trustees, the High Court held that the concession made on behalf of the appellants herein was well bounded; that it would be reasonable to confine the application of section 27 only to cases where in respect of the disputed institution, there had been a prior determination of the controversial rights mentioned in section 41 and that before the Assistant Endowments Commissioner could proceed under section 27 of the Act to appoint nonhereditary trustees in respect of the religious institution, it was necessary for him to come to a finding that the institution was a public one and there were no hereditary trustees thereof in existence and in order to come to such a finding, he should have completed an enquiry under section 41 which coupled with section 44 provided for a judicial determination of these very questions.
The High Court further held that since marfatdari right was itself property and the Act had no application to private endowments and respondents 1 to 3 were admittedly in possession of the institution and its properties, they could not be divested of the same without a finding that the institution was public and they were not hereditary.
trustees, 439 It would be advantageous at this stage to reproduce the ultimate conclusions arrived at by the High Court: "Before the Assistant Endowments Commissioner proceeds under section 27 to appoint non hereditary trustees in respect of a religious institution, he must first come to a finding that there are no hereditary trustees already in existence.
In order to come to such a finding he must first make an enquiry under section 41, which taken alongwith section 44, provides for judicial determination of this very question, involving the property rights of a citizen, by the Assistant Commissioner himself, after notice to the parties and taking evidence.
If no determination of this question is made, it will be open to the Assistant Commissioner to start an enquiry under section 41 suo motu.
It is only after the completion of the enquiry under section 41 that he can come to a finding about the existence or otherwise of hereditary trustees and only thereafter he can proceed to appoint non hereditary trustees.
It is also open to him, in the course of the proceeding under section 41, to pass interim orders for preserving the institution and its properties and also for safe guarding the rights of the aggrieved party pending final determination of the controversy.
Any order passed straightaway under section 27 which has the effect of dispossessing the hereditary trustees of their property without first resorting to an enquiry under section 41, would be illegal and contrary to the scheme of the Act.
" At the hearing of this appeal, counsel for the appellants has re iterated the stand taken by his clients in the High Court.
The short question that arises for determination in this case is whether the Assistant Endowments Commissioner had jurisdiction to proceed under section 27 of the Act without a prior decision of the disputes about the nature of the institution and the existence or other wise of the hereditary trustees.
For a proper determination of the aforesaid question.
it is necessary to refer to a few provisions of the Act and the rules made there under in so far as they are relevant for the purpose of this appeal.
Section 1 (2) makes the Act applicable to all Hindu Public religious institutions and endowments.
It excludes from its purview Hindu private religious institutions and endowments.
Section 3 (xiii) of the Act defines 'Religious Institution ' as under: "3(xiii). 'religious institution ' means a math, a temple and endowments attached thereto or a specific endowment and includes an institution under direct management of the State Government .
A 'religious endowment ' is defined in section 3(xii) as follows: "3(xii). 'religious endowment ' or endowment ' means all property belonging to or given or endowed for 440 the support of maths or temples or given or endowed for the performance of any service or charity connected there with or of any other religious charity, and includes the institution concerned and the permises thereof and also all properties used for the purposes or benefit of the institution and includes all properties acquired from the income of the endowed property." . . . . . .
Section 27 of the Act provides as under : "27 (1) .
The Assistant Commissioner shall, in cases where there is no hereditary trustee, appoint non hereditary trustees in respect of each religious institution other than maths and specific endowments attached thereto, and in making such appointments the Assistant Commissioner shall have due regard to the claims of persons belonging to the religious denomination for whose benefit the said institution is chiefly maintained.
" Section 41 of the Act runs thus: "41.
(1) In case of a dispute the Assistant Commissioner shall have power to enquire into and decide the following disputes and matters: (a) whether an institution is a public religious institution; (b) whether an institution is a temple or a math; (c) whether a trustee holds or held office as a hereditary trustee; (d) whether any property or money is of religious endowment or specific endowment; (e) . . . . (f) . . . . (g) . . . .
Provided that the burden of proof in all disputes or matters covered by clauses (a) and (d) shall lie on the person claiming the institution to be private or the property or money to be other than that of a religious endowment or specific endowment as the case may be".
Section 44 which makes provision for appeals runs thus: "44.
(1) Any person aggrieved by any order passed by the Assistant Commissioner under section 41 or sub sections (1) and (6) of section 42 or section 43 may, with in thirty days from the date of receipt of the order under section 41 or section 43 or from the date of the publication of the order under section 42 as the case may be, appeal to the Commissioner. "(2) Any party aggrieved by the order of the Commissioner under sub section (1) or under sub section (1) or 441 (6) of section 42 may appeal to the High Court within thirty days from the date of the order or publication there of as the case may be." Section 68 deals with delivery of possession of a religious institution, its record, accounts and properties to its trustee or executive officer.
Section 73 which bars the jurisdiction of ordinary courts lays down that no suit or other legal proceeding in respect of the administration of a religious institution or in respect of any matter or dispute for determining or deciding which provision is made in the Act shall be instituted in any court of law, except under, and in accordance with, the provisions of the Act.
Section 74 which relates to the procedure at enquiries and appeals and service of notice is in these terms: C "74(1) In relation to all proceedings before the Commissioner or the Assistant Commissioner, the orders in pursuance of which are under the provisions of this Act appealable to the High Court, the Commissioner or the ., Assistant Commissioner as the case may be, shall have the powers vested in a court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters: (a) discovery and inspection; (b) enforcing the attendance of witnesses, and requiring the deposit of their expenses; (c) compelling the production of documents; E (d) examining witnesses on oath, (e) granting adjournments; (f) reception of evidence taken on affidavit; and (g) issuing commissions for the examination of witnesses.
and may summon and examine suo motu any person whose evidence appears to him to be material and shall be deemed to be a Civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898, (2) The Commissioner and the Assistant Commissioner shall with resect to all such proceedings be deem ed to be persons acting judicially within the meaning of the Judicial officers Protection Act, 1 850.
G (3) The Court hearing on appeal from the order of the Commissioner may direct further enquiry or modify or set aside such order as the Court may deem fit; and unless the appeal is summarily dismissed the Commissioner shall be given an opportunity of being heard before the order passed by him is interfered with in any manner; provided that the operation of the order of the Commissioner shall not be stayed pending the disposal of the appeal".
442 76(1) confers on the State Government general power of making rules to carry out all or any of the purposes of the Act.
Sub section (2) of the section specifically enumerates the matters with respect to which the rules can be made and clause (d) thereof enables the State Government to make rules regarding holding of enquiries, summoning and examination of witnesses and production of documents.
Rule 43 of the Rules framed under section 76(d) of the Act provides: "In relation to all proceedings before the Commissioner or the Assistant Commissioner against whose orders an appeal lies to the High Court under the provisions of the Act, the Commissioner or the Assistant Commissioner as the case may be shall follow the provisions of the Civil Procedure Code, the Indian Evidence Act and the G.R.C.O.
Of the Orissa High Court as far as practicable and in so far as y they are consistent with the Act and the Rules.
In every other case the enquiry will always be of a summary nature and shall be conducted as in respect of suits of small cause nature with due notice to persons affected by the enquiry".
It is important to note that the Assistant Commissioner can ap point non hereditary trustees under section 27 of the Act only where two conditions are satisfied viz. (1) that the religious institution is not an excepted one and (2) that there is no hereditary trustee of the institution.
For the exercise of the power by the Assistant Commissioner under this section, it is, therefore, absolutely necessary that either there should be no dispute about the public nature of the institution and the non existing of hereditary trustees or in case, there is a dispute about any of these matters, a prior determination of such dispute under section 41 of the Act has been made.
Without such preliminary determination if an appointment of a non hereditary trustee is made under section 27 of the Act and a direction is given regarding delivery of possession of the institution etc.
under section 68 of the Act, it would be manifestly illegal and without jurisdiction.
A careful scrutiny of the provisions of the Act makes this position amply clear.
As pointed out by the High Court.
section 27 does not in terms provide that Assistant Commissioner should make an enquiry as to whether the institution is public or private and whether there are hereditary trustees of the institution or not.
These questions have to be gone into under section 41 of the Act which specifically deals of with the investigation and decision of disputes in respect thereof.
Consequently, a prior determination under section 41 that the institution is public and has no hereditary trustee is a sine qua non for appointment of trustees under section 27 of the Act.
This view also gains strength from the fact that there is a marked difference as regards the procedure to be followed in respect of proceedings under sections 27 and 41 of the Act.
Whereas an enquiry, if any, in proceedings under section 27 of the Act because of the non appealable nature of the order passed thereunder in view of section 44 of the Act is of a summary character in which the affected 443 person does not get a reasonable chance of presenting his entire case and evidence is not required to be recorded verbatim, it is otherwise in case of proceedings under section 41 of the Act where the enquiry has to be judicial and Elaborate in view of the fact that the parties are entitled as a matter of right to be heard in support of the claim and to adduce evidence in proof thereof.
(See Ramakrishna Padhy vs Ramesh Chandra Das & Ors(1).
In the latter case, because of the complicated nature of the questions involved and the appealable character of the orders that may be passed thereunder, the Commissioner or the Assistant Commissioner has to act like a Court and is required to follow, as far as practicable, the provisions of the Code of Civil Procedure, the Indian Evidence Act and the G.R.C.O.
Of the Orissa High Court in so far as they are consistent with the Act and the Rules.
This becomes clear from a conjoint reading of section 74 of the Act and Rule 43 of the Rules framed under the Act.
It would also be relevant to notice that there is no Provision in section 27 of the Act identical to the one contained in order 21, Rule 63 of the Code of Civil Procedure to the effect that the summary decision given thereunder would be subject to the decision that may be given under section 41 of the Act.
It has also to be pointed out that successive determination of questions under section 27 and 41 of the Act is not possible in view of the doctrine of res Judicata.
It is also significant that the safeguard relating to appeal both on a point of fact and law (See Sri Sadasib Prakash Brahmachari Trustee of Mahiprakash & Ors.
`The State of Orissa(2) and the intervention of the High Court which is available in respect of orders made under section 41 of the Act is not available in case of orders under section 27 of the Act.
The non availability of the valuable right of an appeal in respect of an order under section 27 of the Act is of fundamental importance and leads to the irresistible conclusion that section 27 cannot exist in isolation and determination of the aforesaid questions is necessary under section 41 of the Act before non hereditary trustees can be appointed.
There can.
therefore, be no manner of doubt that the Assistant Endowments Commissioner has no jurisdiction to appoint a non hereditary trustee of a religious institution under section 27 of the Act without prior determination of the questions that the institution is a public one and has no hereditary trustees.
We are fortified in our view by the decision of this Court in Sri Jagannnth Ramanuja Das & Anr.
vs State of Orissa.(9) .
In that case, the Bihar State Board of Religious Trusts constituted under the Bihar Hindu Religious Trusts Act, 1950 (I of 1951) passed an order in exercise of the powers conferred on it under section 59 of the Act asking the appellant to furnish to the Board a return of income and expenditure of the temple known as 'Salouna Asthal '.
The appellant replied saying that the Asthal was a private institution and not a religious one within the meaning of the Act; that the properties appertaining to the temple did not constitute a religious trust and the appellant H (1) A.I.R. 1959 Orissa 98.
(2) (3) ; 444 was not a trustee within the meaning of the Act.
On getting unfavorable answer, the appellant made an application to the High Court of Patna under Article 226 of the Constitution challenging the demand which was dismissed.
On the matter being brought.
before this Court by the appellant, the aforesaid order of the Board was quashed and the respondent was directed not to interfere with the properties appertaining to the 'Salouna Asthal ' without obtaining the necessary declaration under section 43 of the Act.
Before concluding we would like to observe that we are not at all impressed by the submission made on behalf of the appellants that if the interpretation placed on the provisions of sections 27 and 41 of the Act by the Orissa High Court is taken as correct, it would become difficult to exercise effective control on public religious institutions as proceedings under section 41 take long time.
As rightly observed by the High Court, the courts are meant to interpret the law as it stands.
It is not their function to legislate and to imagine difficulties.
The argument cannot also be countenanced as it overlooks the explanation appended to section 7 whereunder the Commissioner has been given power to pass such interim orders as he may deem necessary for the proper maintenance, administration and management religious institutions and endowments when a dispute concerning the same is pending.
We also find it difficult to accept the submission made by counsel for the appellants that in view of the fact that a duly verified application on proper court fee is necessary for determination of the questions enumerated in section 41 of the Act, no enquiry under the said pro visions of the Act can be held suo motu by the Assistant Endowments Commissioner.
The fact that it may be necessary for a private individual to make an application on proper court fee to the Assistant Commissioner for determination of any of the disputes enumerated in section 41 cannot, in the absence of a specific prohibition, debar the said authority from taking action suo motu under the said provisions of the Act.
This is, however, a matter with which we are not concerned in the present appeal as respondents 1 to 3 had made an application under section 41 of the Act in which unfortunately no proceedings were taken by the Assistant Commissioner.
For the foregoing reasons, we are satisfied that the High Court was right in holding that it was only after completion of the enquiry under section 41 of the Act and determination of the questions that the religious institution was not public and there were no hereditary trustees thereof that the Assistant Commissioner could appoint non hereditary trustees and pass orders regarding delivery of possession to them of the institution.
In the result the appeal fails and is hereby dismissed.
P.H.P. Appeal dismissed.

Output:
Some villages made an application before the Assistant Commissioner of Endowments, Orissa, for appointment of non hereditary trustees under section 27 of the, Orissa Hindu Religious Endowments Act, 1951, for Shiva temple which is more than 100 years old and possesses about 24 acres of land.
A new temple was constructed in place of the old dilapidated temple by the money contributed by the villagers.
It was alleged that respondents Nos. 1 to 3 were mismanaging the affairs of the temple and were not regularly performing the puja or the duty.
An enquiry was ordered pursuant to which the Inspector submitted his report stating that the temple was a public temple and that respondents Nos.
1 to 3 did not show accounts to the Inspector and that, therefore, names of 5 persons were suggested for appointment of non hereditary trustees.
A proclamation inviting objections regarding the suitability of 5 persons was issued.
After making a summary enquiry in the presence of the villagers including respondents Nos. 1 to 3 the Additional Assistant Commissioner passed an order holding that the institution was a public one and appointed 5 non hereditary trustees under section 27 of the Act.
He, however, did not record any finding whether respondents Nos.
1 to 3 were hereditary trustees or not.
A revision Application filed to the Commissioner of Hindu Religious Endowments failed.
Respondent Nos.
I to 3 filed a writ petition in the High Court contending that the order of appointment of non hereditary trustees under section 27 of the Act encroached upon the property rights of the respondents and were without jurisdiction and void having been passed without determining under section 41 of the Act as to whether the institution was a private or a public one and without further determining as to whether the respondent were hereditary trustees.
The appellants contended before the High Court that the provisions of section 27 were independent and that it could be invoked without prior determination of the question under section 41.
The High Court allowed the writ petition holding that section 27 should be applied only where in respect of the disputed institution there had been a Prior determination of the controversial rights mentioned in section 41 and that before the Assistant Endowments Commissioner could proceed under section 27 of the Act to assess non hereditary trustees it was necessary for him to come to a finding that the institution was a public one and there were no hereditary trustees thereof in existence and in order to come to such a finding he should have completed an enquiry under section 41 which coupled with section 44 provided for a judicial determination of these very questions.
Under section 41 in case of a dispute the Assistant Commissioner has power to enquire into and decide whether an institution is a public religious institution and whether a trustee holds office as a hereditary trustee.
Under section 27, the Assistant Commissioner has power to appoint non hereditary trustees in respect of each religious institution in cases where there are no hereditary trustees, Dismissing the appeal, ^ HELD: 1.
The Assistant Commissioner can appoint non hereditary trustees under section 27 of the Act only where two conditions are satisfied : (i) that the religious institution is not an excepted one, and (ii) there are no hereditary trustees of the institution.
436 For the exercise of the powers under.
section 27, therefore, either there should be no dispute about the two conditions or if there is a dispute a prior determination of such dispute under section 41 of the Act has to be made.
Without such preliminary determination an appointment of non hereditary trustees under section 41 since there is no specific prohibition.
[444D E] 2.
Under section 27.
the enquiry is of a summary character in which the affected person does not get a reasonable chance of presenting his entire case and evidence is not required to be recorded verbatim.
It is otherwise in case of Proceedings under section 41 where the enquiry has to be judicial and elaborate.
[442H. 443A] 3.
It is also not correct that a duly verified application on a proper court fee is necessary for the determination of the questions enumerated in section 41 of the Act.
An enquiry can be made suo moto by the Assistant Endowments.
Commissioner for determination of any of the disputes enumerated in section 41 since there is no specific prohibition.
[444D E]