Chhotan Prasad Singh & Ors Vs.
Hari Dusadh & Ors [1976] INSC 299 (24 November 1976)
SHINGAL, P.N.
SHINGAL, P.N.
BHAGWATI, P.N.
GUPTA, A.C.
CITATION: 1977 AIR 407 1977 SCR (2) 174 1977
SCC (1) 102
ACT:
Oaths Act 1873--Section 4---General Clauses
Act 1897, sec.
3(3)--Meaning of affidavit--Criminal
Procedure Code 1898--Section 145(1), whether affidavits before a Magistrate in
145(1) proceedings must be sworn before any other authority empowered to
administer oath.
HEADNOTE:
Proceedings under section 145(1) of the
Criminal Procedure Code 1898 were going on between the parties. The appellants
filed affidavits before the Magistrate. The said affidavits were not sworn
before the Magistrate who was in seisin of the case but were sworn before some
other Magistrate. It was contended before the Magistrate by the respondents
that the said affidavits were not admissible in evidence. The High Court held
those affidavits to be inadmissible.
Dismissing the appeal by special leave,
HELD: (1) In the absence of any specific
provision to the contrary in the Criminal Procedure Code the affidavits have to
be sworn or affirmed in accordance with the provisions of the Oaths Act, 1873.
Section 145(1) of the Code provides that the Magistrate making an order under
it shall require the parties concerned in the dispute to attend his court in
person or by pleader and to put in such documents or to adduce by putting in
affidavits the evidence of such persons as they rely upon in support of their
claim. The affidavits contemplated by the sub-section are, therefore, evidence
for purposes of proceedings before the Magistrate concerned even though the
Evidence Act does not apply to them. [175G-H] (2) There is no provision in the
Code specifying the courts before whom the affidavits referred to in section
145 have to be sworn and affirmed. The definition of affidavit in section 3(3)
of the General Clauses Act 1897 only states that it shall include affirmation
and declaration in the case of persons by law allowed to affirm or declare
instead of swearing. Section 4 of the Oaths Act reads as under:
"4. The following Courts and persons are
authorised to administer by themselves or by an officer empowered by them in
this behalf, oaths and affirmations in discharge of the duties or in exercise
of the powers imposed or conferred upon them respectively by law :-(a) all
Courts and persons having by law or consent of parties authority to receive
evidence;" It is clear that all Courts and persons having by law or
consent of parties authority to receive evidence are authorised to. administer
oaths and affirmations, but they can do so only where they are otherwise acting
in the discharge of the duties or in exercise of the powers imposed or
conferred upon them respectively by law. In the present case the Magistrate
concerned with the proceedings under s. 145 of the Code was discharging the
duties imposed and exercising the powers conferred by the Code and he alone could
administer the oaths and affirmations to the persons who made affidavits and
not Magistrates who were not discharging any such duty or exercising any such
power. [176A-H] Nandial Ghose v. Emperor AIR 1944 Cal. 283, Hemdan v. State of
Rajasthan & Ors., AIR 1966 Raj. 5; Govind v. State and others AIR 1969 All.
405; Krishna Chandra Naik v. Sk. Makbul and others AIR 1970 Orissa 309; Mahesh
Thakur and others v. Lakshman Prasad Thakur and another (1971) 19 Bihar Law
Journal 727 and State of Madhya Pradesh v. Trivedi Prasad (1971) XVI H.R. Law
journal 1059 approved.
175 Ahmad Din v. Abdul Salem AIR 1966 Pb. 528
and Shambhu Nath Chopra v. State AIR 1970 Delhi 210, over-ruled.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 316 of 1971.
(Appeal by Special Leave from the Judgment
and Order dated the 17th September, 1971 of the Patna High Court in Criminal
Revision No. 2488 of 1971) and Criminal Appeal No. 317 of 1971.
(Appeal by Special Leave from the Judgment
and Order dated the 7th October, 1971 of the Patna High Court in Criminal
Revision No. 1491 of 1971.) D. Goburdhan and D.P. Sharma for the appellants in
both the appeals.
S.C. Agrawala and V.J. Francis for
respondents in both the appeals.
The Judgment of the Court was delivered by
SHINGHAL, J.--The point for consideration in these appeals by special leave is
whether affidavits, sworn or affirmed before magistrates who are not in seisin
of the case under section 145 of the Code of Criminal Procedure, hereinafter
referred to as the Code, could be read in evidence under that section ? The
High Court has held such affidavits to be inadmissible in evidence, in its
impugned judgments dated September 17, 1971 and October 7, 1971, and that is
why the present appeals by special leave have arisen at the instance of the
aggrieved parties.
It is not in controversy that in the absence
of any specific provision to the contrary in the Code, the affidavits have to
be Sworn or affirmed in accordance with the provisions of the Oaths Act, 1873.
It is also not in controversy that the Oaths Act of 1969 has no application to
the controversy.
Sub-section (1) of section 145 of the Code
provides, inter alia, that the Magistrate making an order under it shall
require the parties concerned in the dispute to attend his court in person or
by pleader and to put in such documents, or to adduce, "by putting in
affidavits, the evidence of such persons" as they rely upon in support of
their claims. The affidavits contemplated by the sub-section are therefore
evidence for purposes of the proceedings before the Magistrate concerned even
though the Evidence Act does not apply to them by virtue of the express
provision of section 1 of that Act.
Chapter XLVI of the Code deals with
miscellaneous matters including the affidavits referred to in sections 539,
539-A and 539-AA. Section 539 deals with courts and persons before whom
affidavits and affirmations to be used before any High Court or any officer of
such Court may be sworn and affirmed. Section 539-A relates to 176 affidavits
in proof of conduct of public servants, while section 539-AA relates to the
authorities before whom affidavits to be used under section 510A or 539-A may
be sworn or affirmed. An affidavit under section 145 is not however of a formal
character because it is meant to prove or disprove the competing claim of the
parties as respects the fact of actual possession of the subject or dispute.
There is thus no provision in the Code specifying the courts or persons before
whom the affidavits referred to in section 145 have to be sworn and affirmed.
This has therefore to be done according to the general provisions relating to
affidavits.
The definition of "affidavit" in
section 3(3) of the General Clauses Act (Act X of 1897) only states that it
shall include affirmation and declaration in the case of persons by law allowed
to affirm or declare instead of swearing. But it is an essential characteristic
of an affidavit that it should be made on oath or affirmation before a person
having authority to administer the oath or affirmation It is here that section
4 of the Oaths Act comes into operation which provides as follows:-"4. The
following Courts and persons are authorised to administer by themselves or by
an officer empowered by them in this behalf, oaths and affirmations in
discharge of the duties or in exercise of the powers imposed or conferred upon
them respectively by law :-(a) all Courts and persons having by law or consent
of parties authority to receive evidence;" Then follow clause (b) and a
proviso, with which we are not concerned.
It is therefore clear that all courts and
persons having by law or consent of parties authority to receive evidence are
authorised to administer oaths and affirmations, but they can do so only where
they are otherwise acting" in the discharge of the duties or in exercise
of the powers imposed or conferred upon them respectively by law." So the
court or person mentioned in clause (a) of section 4 of the Oaths Act can
administer oath or affirmation to the deponent in an affidavit only if the,
court or person in acting in the "discharge of the duties or in exercise
of the powers imposed or conferred upon them respectively by law." In the
present cases, the Magistrates concerned with the proceeding under section 145
of the Code were discharging the duties imposed and exercising the powers
conferred by the Code, and they alone could administer the oaths and
affirmations to the persons who made the affidavits, and not the magistrates
who were not discharging any such duty or exercising any such power. As the
affidavits in the cases before us were admittedly not sworn or affirmed before
Magistrates who were dealing with the disputes under section 145 of the Code,
they were not proper affidavits and did not constitute evidence for purpose of
section 145. A similar view 177 has been taken in Nandial Ghost v. Emperor(1),
Hemdan v.
State Rajasthan and others(2), Govind v.
State and others(3), Krishna Chandra Naik v. Sk. Makbul and others(4) Mahesh
Thakur and others v. Lakshman Prasad Thakur and another(5) and State Madhya
Pradesh v. Triveni Prasad(6) on which reliance has been placed by counsel for
the respondents.
We have gone through Ahmad Din v. Abdul
Selem,(7) which has been cited with approval in Shambhu Nath Chopra v. State,(8)
on which reliance. has been placed by counsel for the appellants. We find
however that in Ahmad Din's case (supra) the Punjab High Court did not take
proper notice of the requirement of section 4 of the Oaths Act that the courts
and persons mentioned in clause (a) could administer oaths only "in
discharge of the duties or in exercise of the powers imposed or conferred upon
them respectively by law." We have also examined the reasoning in Shambhu
Nath Chopra's case (supra), but the Delhi High Court there went wrong in
holding that the evidence on affidavits referred to in section 145 of the Code
was of a formal character within the meaning of section 510A so as to attract
section 539AA.
At the High Court has rightly held in the two
impugned judgments that the affidavits were inadmissible in evidence as they
were sworn before Magistrates who were never in seisin of the case, we find no
force in these appeals and they are hereby dismissed.
P.H,P. Appeals dismissed.
(1) A.I.R. 1944 Cal. 283. (2) A.1.R. 1966
Raj. 5.
(3) A.I.R. 1969 All. 405. (4) A.I.R. 1970
Orissa 209.
(5) (1971) 19 Bihar, Law Journal 727. (6)
[1971] XVI M.P.L. J. 1059a (7) A.I.R. 1966 Pb. 528. (8) A.I.R. 1970 Delhi 210.
13 -1:158SCI/77 178 STATE OF KERALA v.
M.T. JOSEPH November 25, 1976 [A. N. RAY,
C.J., M.H. BEG AND JASWANT SINGH, JJ.] Kerala Land Reforms Act 1963--Kerala
Government Land Assignment Act 1960--Sec. 8---Whether after a person acquires
title to Government land any further restrictions can be imposed.
The Government of Travancore sanctioned a
scheme for the reclamation of the Vimbana Lake upon terms and conditions
contained in at document dated 4-10-1963. The document provided that one Joseph
his father on payment of Rs. 10'/per acre which was to. be recovered in 10
equal instalments would be given possession of certain tracts of land which
they undertook to reclaim. The said agreement was modified by an order dated
12-2-1941 and a fresh agreement was executed in July 1941. The said agreement
provided that till tie remittances of all amounts due to the Government by way
of land value are paid the executants shall have no right of alienation in
respect of the property in question and that till then the property shall
remain with the Government as sole owner. It further provided that, until the
entire land value is paid by the executant and until the assignment of the land
and issue of Patta is completed, the executant undertook not to do any act
which might reduce the value of the property. Joseph complied with the conditions
laid down in the agreement and ;acquired full ownership rights by fulfilling
the said terms. In 1957, Joseph executed a deed of settlement of this land.
Thereafter Kerala Land Reforms Act of 1963 was passed so that the State Land
Board started proceedings for the surrender of the land. The question before
the Land Board was whether the whole land should be treated as a single unit
belonging to Joseph or whether it may be divided and treated as separate units
of persons in whose favour Joseph made the settlement. If the children of
Joseph had acquired rights under the settlement each of them could be treated
as entitled to compensation for a separate unit. The State relied on section 8
of the Kerala Government Land Assignment Act 1960 which provides that all
provisions, restrictions conditions and limitations contained ha any Patta or
other document evidencing an assignment of Government land shall be valid and
take effect according to their tenure, any rule of law or usage to the contrary
notwithstanding.
Dismissing the appeal,
HELD: Tie terms in the 1941 agreement
operated as a restraint upon the alientation of the rights only so long as all
the amounts due to the Government by way of land revenue were not paid up.
Since, in the present case the entire amount had been paid by 10 yearly
instalments before the year 1957 and since the Government had effected the
mutation in its record acting upon the settlement of 1957 in favour of the
children of Joseph, it could not be said that there was any patta or other
documents containing any condition to which section 8 of the Act applied. The
children derived rights under the deed of settlement and therefore, each of
them is entitled to compensation for a separate unit. [180 C-E] CIVIL APPELLATE
JURISDICTION: Civil Appeal Nos. 587-696 & 598-600 of 1976.
(Appeals by Special Leave from the Judgment
and order dated 13th of July 1975 of the Kerala High Court in CRP Nos.
1188, 1227, 1250, 1272. 1278, 1279.,
1284-1287, 1309, 1312 and 1386/73).
179 M.M. Abdul Khader, Adv. Genl. and K.M.K.
Nair, for the Appellants.
T.S. Krishnamoorthy Iyer and P.K. Pillai, for
RR. excepting R. 8 in CA 587/76.
The Judgment of the Court was delivered by
BEG, J.--These appeals by special leave raise the question whether the Kerala
High Court had correctly interpreted and applied Section 8 of the Kerala Govt.
Land AsSignment Act, 1960 (hereinafter referred to as 'the Act') to the cases
before us. This provision reads as follows:
"8. All provisions, restrictions,
conditions and limitations over, contained in any Patta or other document
evidencing an assignment of Government land shah be valid and take effect
according to their tenor, any rule of law of usage to the contrary
notwithstanding".
The facts upon which the provision was sought
to be applied are these: On 23 October, 1939, the Government of Travancore
sanctioned a. scheme for the reclamation of the Vimbang Lake upon terms and
conditions which were set forth in a document dated 4 October, 1939. The
agreement provided that one M. T. Joseph and his father, on payment of Rs. 10/per
acre, which were to be recovered in ten equal instalments, would be given
possession of certain tracts of land which they undertook to reclaim. For the
first two years after what is called the "Registry" of the names of
the two lessees no tax was to be levied. The "Registry" was liable to
be cancelled if adequate progress was not made within these two years. It
appears that the agreement was modified by an order dated 12 February, 1941 and
a fresh agreement was executed in July 1941 by M.T. Joseph (now dead) who
entered into possession of Keyal land, constructed the ring bunds at
considerable expense, and brought the very large tracts of land to be reclaimed
under paddy cultivation. In June 1957, M.T. Joseph executed a deed of
settlement of all this land, after he had acquired full ownership rights by
fulfilling the terms of the agreement. The Act which is sought to be now
applied was then passed. After that, the Kerala Land Reforms Act of 1963. was
passed so that the, "State Land Board" started proceedings for the
surrender of these lands in accordance with the provisions of the Land Reforms
Act.
The only question now before us is whether,
by an application of section 8 of the Act, the whole land is to be treated as a
single unit belonging to M.T. Joseph (since dead), on the dispositions made by
M.T. Joseph, under the deed of settlement executed by him on 15th June, 1957,
distributing the land among his children, resulted in separate units for the
purposes of compensation for the land surrendered. If the children had acquired
right under the deed of settlement each of them could be treated as entitled to
compensation for a separate unit. If the deed was of no effect, the mere fact
that the children were in possession, under an authority from their father
could not change the' ownership of the land in the constructive possession of
the father.
We have been taken through the deed of
agreement of July, 1941, with the Government. which contains the following
term, the effect of which has to be determined:
180 "Till the remittance of all amount
due to. the Government by way tharavila (land value) etc. the executant shall
have no right of alienation in respect of the schedule property and the
property shall remain with the Government as sole owner. The executant shall
remit the tax at the thirteenth thoram in the village office every year after
the first two years of registry so long as no default is made in the payment of
installment and obtain receipt there for. Until the entire tharavila (land
value under this agreement as stated above is paid by the executant and until
the assignment of the land and issue of patta is completed the executant
undertakes not to do any act which may reduce the value of the property and if
as stated above due to any reason the property is recovered. from the executant
he shall not put forward any claim for improvements etc. and the property shall
be surrendered to Government".
It is clear to us that this term in the
agreement operated as a restraint upon the alienation of rights only so.
long as. all the amounts due to the
Government as Tharavila had not been paid up. The whole amount had to be paid
up in ten yearly installments. It has been paid up before 1957.
Furthermore, as the Kerala High Court found,
the settlement of land on 15th June, 1957 had not merely been given effect to
by a mutation in the relevant Government records but pattas had actually been
given by the Government, acting upon the settlement of 1957, in favour of the
children of M.T. Joseph. Hence, it could not be said that there was any patta
of other document containing any condition to which Section 8 of the Act could
apply. We find, from the Judgment under appeal, that several questions, which
have no real bearing on the rights of the parties, were: also. argued.
One of these questions was whether land could
be acquired by adverse possession by the alienees of the allottees of the.
land from the Government under the scheme for
its reclamation. We fail to see how a question of adverse possession arises
here when the Government itself recognises the rights of the children of M.T.
Joseph in the pattas executed by it in their favour.
The High Court recorded the following
findings about the Government acting on the terms of the settlement of 15th
June, 1957, the correctness of which had not been challenged before us:
"This settlement deed has been
recognised by the Government mutation has been effected in the names of the
children and pattas have also. been issued to them. It has been further stated
on behalf of the revision petitioners (the heirs of the said Joseph and those
who took under the settlement deed dated 15.6.1957) that levy under the Kerala
Rice and Paddy (Procurement by Levy) Order, 1966, has been collected from each
of the shares under the deed of 1957, that land tax has been imposed on each of
the shares separately and agricultural income-tax collected on the income of
the properties of each of the sharers".
We do not think it is necessary to go into
any other question. The High Court was of opinion that some facts had still to
be as181 certained when the case goes back to the Land Board for proceeding on
the footing determined by the High Court. We think that we should make it clear
that matters to. be still determined could not, in view of our finding, involve
determination of any question of adverse possession of the claimants, the
children of M.T. Joseph.
For the reasons given above, we dismiss these
appeals.
We make no order as to costs.
P.H.P, Appeals dismissed.
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