Datasets:

satviksh09

/

hf_legal_dataset_legal_statute

like 0

one lakshminarayana iyer a hindu brahmin who owned considerable properties in the tirunelveli district died on 13th december 1924 leaving him surviving a widow ranganayaki and a married daughter ramalakshmi. ramalakshmi had married the plaintiff and had a number of children from him. they were all alive in december 1924 when lakshminarayana died. before his death he executed a will on 16th november 1924 the construction of which is in controversy in this appeal. by this will he gave the following directions after my lifetime you the aforesaid ranganayaki amminal my wife shall till your lifetime enjoy the aforesaid entire properties the outstandings due to me the debts payable by me and the chit amounts payable by me. after your lifetime ramalakshmi ammal our daughter and wife of rama ayyar avergal of melagaram village and her heirs shall enjoy them with absolute rights and powers of alienation such as gift exchange and sale from son to grandson and so on for generations. as regards the payment of maintenance to be made to chinnanmal alias lakshmi ammal wife of my late son hariharamayyan my wife ranganayaki ammal shall pay the same as she pleases and obtain a release deed. ranganayaki entered into possession of the properties on the death of her husband. on 21st february 1928 she settled the maintenance claim of lakshmi ammal and obtained a deed of release from her by paying her a sum of rs 3350 in cash and by executing in her favour an agreement stipulating to pay her a sum of rs 240 per annum. ramalakshmi died on 25th april 1938 during the lifetime of the widow. none of her children survived her. on the 24th july 1945 the widow describing herself as an absolute owner of the properties of her husband sold one of the items of the property to the 2nd defendant for rs 500. on the 18th september 1945 the suit out of which this appeal arises was instituted by the plaintiff the husband and the sole heir of ramalakshmi for a declaration that the said sale would not be binding on him beyond the lifetime of the widow. a prayer was made that the widow be restrained from alienating the other properties in her possession. on the 19th september 1945 an ad interim injunction was issued by the high court restraining the widow from alienating the properties in her possession and forming part of her husband 's estate inspite of this injunction on the 27th september 1945 she executed two deeds of settlement in favour of the other defendants comprising a number of properties. the plaintiff was allowed to amend his plaint and include therein a prayer for a declaration in respect of the invalidity of these alienations as well. it was averred in the plaint that ramalakshmi obtained a vested interest in the suit properties under the will of her father and plaintiff was thus entitled to maintain the suit. the defendants pleaded that the plaintiff had no title to maintain the suit that the widow was entitled under the will to an absolute estate or at least to an estate analogous to and not less than a widow 's estate that the estate given to ramalakshmi under the will was but a contingent one and she having predeceased the widow no interest in the suit properties devolved on the plaintiff. the main issue in the suit was whether the widow took under the will an absolute estate or an estate like the hindu widow 's estate and whether the daughter 's interest therein was in the nature of a contingent remainder or whether she got in the properties a vested interest. the subordinate judge held that the widow took under the will a limited life interest and not an absolute estate or even a widow 's estate under hindu law and that the daughter got there under a vested interest in the properties to which the plaintiff succeeded on her death. in view of this finding he granted the plaintiff a declaratory decree to the effect that the first defendant had only an estate for life in the suit properties and that the alienations made by her would not endure beyond her lifetime. the question as to the validity of the alienations was left undetermined. the unsuccessful defendants preferred an appeal against this decree to the high court of judicature at madras. during the pendency of the appeal the widow died on 14th february 1948. the high court by its judgment under appeal affirmed the decision of the trial judge and maintained his view on the construction of the will. leave to appeal to the supreme court was granted and the appeal was admitted on the 27th november 1951. the substantial question to decide in the appeal is whether the estate granted by the testator to his widow was a fall woman 's estate under hindu law or merely a limited life estate in the english sense of that expression. it was not contested before us that a hindu can by will create a life estate or successive life estates or any other estate for a limited term provided the donee or the persons taking under it are capable of taking under a deed or will. the decision of the appeal thus turns upon the question whether the testator 's intention was to give to his widow ail ordinary life estate or an estate analogous to that of a hindu widow. at one time it was a moot point whether a hindu widow 's estate could be created by will it being an estate created by law but it is now settled that a hindu can confer by means of a will oil his widow the same estate which she would get by inheritance. the widow in such a case takes as a demise and not as an heir. the court 's primary duty in such cases is to ascertain from the language employed by the testator what were his intentions keeping in view the surrounding circumstances his ordinary notions as a hindu in respect to devolution of his property his family relationships etc. in other words to ascertain his wishes by putting itself so to say in his armchair. considering the will in the light of these principles it seems to us that lakshminarayan iyer intended by his will to direct that his entire properties should be enjoyed by his widow during her lifetime but her interest in these properties should come to an end on her death that all these properties in their entirety should thereafter be enjoyed as absolute owners by his daughter and her heirs with powers of alienation gift exchange and sale from generation to generation. he wished to make his daughter a fresh stock of descent so that her issue male or female may have the benefit of his property. they were the real persons whom he earmarked with certainty as the ultimate recipients of his bounty. in express terms he conferred on his daughter powers of alienation byway of gift exchange sale but in sharp contrast to this on his widow he conferred no such powers. the direction to her was that she should enjoy the entire properties including the outstandings etc. and these shall thereafter pass to her daughters. though no restraint in express terms was put on her powers of alienation in case of necessity even that limited power was not given to her in express terms. if the testator had before his mind 's eye his daughter and her heirs as the ultimate beneficiaries of his bounty that intention could only be achieved by giving to the widow a limited estate because by conferring a full hindu widow 's estate on her the daughter will only have a mere spes successions under the hindu law which may or may not mature and under the will her interest would only be a contingent one in what was left indisposed of by the widow. it is significant that the testator did not say in the will that the daughter will enjoy only the properties left indisposed of by the widow. the extent of the grant so far as the properties mentioned in the schedule are concerned to the daughter and the widow is the same. just as the widow was directed to enjoy tile entire properties mentioned in the schedule during her lifetime in like manner the daughter and her heirs were also directed to enjoy the same properties with absolute rights from generation to generation. they could not enjoy the same properties in the manner directed if the widow had a full hindu widow 's estate and had the power for any purpose to dispose of them and did so. if that was the intention the testator would clearly have said that the daughter would only take the properties remaining after the death of the widow. the widow can not be held to have been given a full hindu widow 's estate under the will unless it can be said that under its terms she was given the power of alienation for necessary purposes whether in express terms or by necessary implication. as above pointed out admittedly power of alienation in express terms was not conferred on her. it was argued that such a power was implicit within the acts she was authorized to do that is to say when she was directed to pay the debts and settle the maintenance of ramalakshmi it was implicit within these directions that for these purposes if necessity arose she could alienate the properties. this suggestion in the surrounding circumstances attending the execution of this will can not be sustained. the properties disposed of by the will and mentioned in the schedule were considerable in extent and it seems that they fetched sufficient income to enable the widow to fulfil the obligations under the will. indeed we find that within four years of the death of the testator the widow was able to pay a lump sum of rs 3350 in cash to the daughter in law without alienating any part of the immovable properties and presumably by this time she had discharged all the debts. it is not shown that she alienated a single item of immovable property till the year 1945 a period of over 21 years after the death of her husband excepting one which she alienated in the year 1937 to raise a sum of rs 1000 in order to buy some land. by this transaction she substituted one property by another. for the purpose of her maintenance for payment of debts etc and for settling the claim of the daughter in law she does not appear to have felt any necessity to make any alienation of any part of the estate mentioned in the schedule and the testator in all likelihood knew that she could fulfil these obligations without having recourse to alienations and hence he did not give her any power to do so. in this situation the inference that the testator must have of necessity intended to confer on the widow power of alienation for those limited purposes can not be raised. in our opinion even if that suggestion is accepted that for the limited purposes mentioned in the will the widow could alienate this power would fall far short of the powers that a hindu widow enjoys under hindu law. under that law she has the power to alienate the estate for the benefit of the soul of the husband for pilgrimage and for the benefit of the estate and for other authorized purposes. it can not be said that a hindu widow can only alienate her husband 's estate for payment of debts to meet maintenance charges and for her own maintenance. she represents the estate in all respects and enjoys very wide power except that she can not alienate except for necessity and her necessities have to be judged on a variety of considerations. we therefore hold that the estate conferred on ranganayaki ammal was more like the limited estate in the english sense of the term than like a full hindu widow 's estate in spite of the directions above mentioned. she had complete control over the income of the property during her lifetime. but she had no power to deal with the corpus of the estate. and it had to be kept intact for the enjoyment of the daughter. though the daughter was not entitled to immediate possession of the property it was indicated with certainty that she should get the entire estate at the proper time. and she thus got an interest in it on the testator 's death. she was given a present right of future enjoyment in the property. according to jarman jarman on wills the law leans in favour of vesting of estates and the property disposed of belongs to the object of the gift when the will takes effect and we think the daughter got under this will a vested interest in the testator 's properties on his death. it was strenuously argued by mr k section krishnaswami iyengar that lakshminarayana iyer was a brahmin gentleman presumably versed in the sastras living in a village in the southernmost part of the madras state that his idea of a restricted estate was more likely to be one analogous to a hindu woman 's estate than a life estate a understood in english law wherein the estate is measured by use and not by duration and that if this will was construed in the light of the notions of lakshminarayana iyer it should be held that the widow got under it a hindu widow 's estate and the daughter got under it a contingent remainder in the nature of spes and on her death there was nothing which could devolve on the plaintiff and he thus had no locus standi to question the alienations made by the widow. the learned counsel in support of his contention drew our attention to a number of decisions of different high courts and contended that the words of this will should be construed in the manner as more or less similar words were construed by the courts in the wills dealt with in those decisions. this rule of construction by analogy is a dangerous one to follow in construing wills differently worded and executed in different surroundings. vide sasiman v shib narain 491. a 2 5. however out of respect for learned counsel on both sides who adopted the same method of approach we proceed to examine some of the important cases referred to by them. mr krishnaswami iyengar sought to derive the greatest support for his contention from the decision in ram bahadur v jager. nath prasad 3 pat. l j 199. the will there recited that if a daughter or son was born to the testator during his lifetime such son or daughter would be the owner of all his properties but if there was no son or daughter his niece section would get a bequest of a lakh of rupees and the rest of the movable and immovable properties would remain in possession of his wife until her death and after her these would remain in possession of his niece. the remainder was disposed of in the following words if on the death of my wife and my niece there be living a son and a daughter born of the womb of my said brother 's daughter then two thirds of the movable property will belong to the son and one third to the daughter. but as regards the immovable property none shall have the lest right of alienation. they will of course be entitled to enjoy the balance left after payment of rent. this will was construed as conveying an absolute estate to the son and the daughter of the niece. it was remarked that in spite of an express restriction against alienation the estate taken by section the niece was an estate such as a woman ordinarily acquires by inheritance under the hindu law which she holds in a completely representative character but is unable to alienate except in case of legal necessity and that such a construction was in accordance with the ordinary notions that a hindu has in regard to devolution of his property. the provisions contained in this will bear no analogy to those we have to construe. the restraint against alienation was repugnant to both a life estate and a widow estate and was not therefore taken into account. but there were other indications in that will showing that a widow 's estate had been given. the fact that the gift over was a contingent bequest was by itself taken as a sure indication that the preceding bequest was that of a widow 's estate. there is no such indication in the will before us. reliance was next placed on the decision in pavani subbamma v ammala rama naidu 1937. 1 m l j 268. 1936 indlaw mad 236. under the will there dealt with the widow s was to enjoy the properties and after her lifetime the properties were to be taken in the ratio of three to five by the son 's daughter and the daughter 's son respectively. a suit was instituted by the son 's daughter for the recovery of possession of her share in one item of property forming part of the estate which had been sold by section the question for decision in that case was whether section was at all entitled to sell anything more than her life interest even for purposes of meeting a necessity binding upon the estate. varadachari j held that since in the will the gift over to the grand children was of the entire properties and not a mere gift by way of defeasance it had to be held that it indicated that the prior gift in favour of the widow was only of a limited interest. this decision therefore goes against the contention of the learned counsel but he placed reliance on the observations made in the judgment when the learned judge proceeded to say in deference to the view taken in maharaja of kolhapur v sundaram iyer 1925 i l r 48 mad 1 it may be possible to create an interest analogous to a woman 's estate in hindu law notwithstanding the addition of a gift over and that the estate taken by section need not necessarily be only a life estate in the english law sense of the term. we do not understand how such passing observations can be helpful in deciding the present case. assuming that it is possible to create a hindu woman 's estate not with standing the addition of a gift over the question nevertheless whether that had been done in a given case must depend on the terms of the particular instrument under consideration. the following remarks in the privy council decision in nathu ram mahajan v gangayabai 1938. 2 m l j 562 were next cited as the will gave her the right to enjoy the income of the estate during her lifetime it was evidently contemplated that she should as provided by the hindu law in the case of a widow be in possession of the estate. such casual observation made in respect of a will couched in entirely different terms can not afford much assistance in the decision of the case. in vasantharao ammannamma v venkata kodanda rao pantalu 1939. indlaw mad 621 1940. m l j 188 the next case cited a hindu testator who was a retired subordinate judge provided by his will as follows out of the aforestated ancestral lands the oneninth share to which i am entitled shall be enjoyed after my death by my wife till her death and after her death it shall pass to section son of my second elder brother deceased. my self acquired properties shall on my death be enjoyed by my wife till her death and after her death they shall pass to my daughter. thereafter they shall pass to my grandson through my daughter. the will was construed as giving the self acquired properties ultimately to the grandsons and the estate of the daughter was likened to an estate which she would take under the law of inheritance that is a limited estate analogous to a widow 's estate. at page 193 of the report it was observed as follows the question therefore arises did he intend to confer only a life estate or a daughter 's estate. it seems to us that he meant to give a daughter 's estate rather than a life estate. he omits the words during her life with reference to the disposition in favour of the daughter. the words pass to my daughter would rather indicate that in the ordinary course of devolution the estate should pass to her that is the daughter and then to the grandsons. the words used in favour of the grandsons seem to indicate that the estate conferred on the daughter was not a life estate because there is no direct gift in favour of the grandsons but on the other hand what he says is that through his daughter the estate shall pass to his grandsons. either he must have intended that the daughter should convey the property either by will or inter vivos to the grandsons or she having taken the estate through her it should pass to the grandsons in the ordinary course of devolution. if it was the daughter 's estate that was intended to be conferred there can be no question that the estate taken by the grandsons is not a vested interest. this line of reasoning which appealed to the learned judges is not of much he to us here as the language hi this will is quite different. if the same line of reasoning is adopted here the decision of the case would go against the client of mr k section k iyengar because in the will in this case the widow 's estate is delimited by the words till your lifetime. reliance was next placed on maharaja of kolhapur v sundaram iyer 1925 i l r 48 mad. that was a case of a government grant on the special terms set out therein and the question arose as to the nature of the grant. there it was said that the widows of sivaji raja got the gift of a life estate very much resembling the ordinary estate of a hindu widow and with all the incidents of a widow 's estate except the liability to be divested but nevertheless a life estate rather than an estate of inheritance. these remarks do not throw much light on the point before us. the last decision referred to was the decision of the privy council in mahomed shumsool v shewukram 1874 indlaw pc 12 1874 75 2 i a 7 there a hindu inhabitant of bihar by a document of a testamentary character declared his daughter who had two daughters as his heir and after her two daughters together with their children were declared heirs and malik. one daughter of the daughter predeceased the testator without issue and the other daughter died after the death of the testator leaving an only son the respondent in that case. in a suit by the respondent against his grandmother the daughter of the testator for a declaratory order preserving unmolested his future right and title to the said lands it was held that the daughter took an estate subject to her daughters succeeding her. in this judgment the following observations were emphasized as relevant to this enquiry it has been contended that these latter expressions qualify the generality of the former expressions and that the will taken as a whole must be construed as intimating the intention of the testator that mst. rani dhun kaur should not take an absolute estate but that she should be succeeded in her estate by her two daughters. in other words that she should take an estate very much like the ordinary estate of a hindu widow. in construing the will of a hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of hindus with respect to the devolution of property. it may be assumed that a hindu generally desires that an estate especially an ancestral estate shall be retained in his family and it may be assumed that a hindu knows that as a general rule at all events women do not take absolute estates of inheritance which they are enabled to alienate. these observations are unexceptionable but it may also be pointed out that it is open to a hindu to confer a limited life estate on his widow or even a larger estate than a widow takes as an heir and that in every case he may not confer upon her by will a hindu widow 's estate which she would otherwise get by inheritance. generally speaking there will be no point in making a will if what is to be given to a widow is what she would get on intestacy and cases do arise where a hindu wishes to give to his widow a more restricted estate than she would get on intestacy or a much larger estate than that. the question in every case can not be determined merely on the theory that every hindu thinks only about a hindu widow 's estate and no more. what is given must be gathered from the language of the will in the light of the surrounding circumstances. the learned counsel for the respondent followed the line adopted by mr krishnaswami iyengar. he also on the analogy of other wills and the decisions given on their terms wanted a decision on the construction of this will in his favour. in the first instance he placed reliance on a decision of the madras high court in ratna chetty v narayana swami chetty 19i4 26 m l j 616. there the testator made a will in favour of his wife providing inter alia. all my properties shall after my death be in possession of my wife herself and she herself should be heir to everything and mutha arunachala chetty nephew and my wife should live together amicably as of one family. if the two could not agree and live together amicably my wife would pay rs 4000 and separate him. and then my wife would enjoy all the remaining properties with absolute rights. if both of them would live together amicably muthu arunachala chetty himself would enjoy the properties which remain after the death of the widow. it was held upon the construction of the will that the nephew who lived amicably with the widow till his death had a vested interest at testator 's death which could not be defeated by a testamentary disposition by the widow in favour of a stranger. this decision only decides that case and is not very relevant in this enquiry. reference was also made to the decision of their lordships of the privy council in mst. bhagwati devi v chowdry bholonath thakur 1874 75 2 i a 256. this was a case of a gift inter vivos. the gift to mst. chunderbutti his wife was in these terms the remaining milkiut and minhai estates together with the amount of ready money articles slaves and all household furniture i have placed in the possession of mst. chunderbutti thakurain my wife to be enjoyed during her lifetime in order that she may hold possession of all the properties and milkiut possessed by me the declarant during her lifetime and by the payment of government revenue appropriate the profits derived therefrom but that she should not by any means transfer the milkiut estates and the slaves that after the death of my aforesaid wife the milkiut and household furniture shall devolve on girdhari thakur my karta adopted son. the subordinate judge held that chunderbutti got an estate for life with the power to appropriate profits and girdhari got a vested remainder on her death. the high court took a different view and held that chunderbutti took the estate in her character as a hindu widow. the privy council on this will held as follows their lordships do not feel justified upon mere conjecture of what might probably have been intended in so interpreting it as materially to change the nature of the estate taken by chunderbutti. if she took the estate only of a hindu widow one consequence no doubt would be that she would be unable to alienate the profits or that at all events whatever she purchased out of them would be an increment to her husband 's estate and the plaintiffs would be entitled to recover possession of all such property real and personal. but on the other hand she would have certain rights as a hindu widow for example she would have the right under certain circumstances if the estate were insufficient to defray the funeral expenses or her maintenance to alienate it altogether. she certainly would have the power of selling her own estate and it would further follow that girdhari would not be possessed in any sense of a vested remainder but merely of a contingent one. it would also follow that she would completely represent the estate and under certain circumstances the statute of limitations might run against the heirs to the estate whoever they might be. their lordships see no sufficient reason for importing into this document words which would carry with them all these consequences and they agree with the subordinate judge in construing it according to its plain meaning. these observations have to a certain extent relevance to the present case but on the facts this case is also distinguishable. this will was couched in different language than the will in the present case. there was a clear prohibition forbidding the widow to make any transfers of the milkiuit estates and the slaves. reference was also made to a decision of the bombay high court in lallu v jagmohan 1898 i l r 22 bom. the will there ran as follows. when i die my wife named suraj is owner of that property. and my wife has powers to do in the same way as i have absolute powers to do when i am present and in case of my wife 's death my daughter mahalaxmi is owner of the said property after that. it was held that suraj took only a life estate under the will with remainder over to mahalaxmi after her death and the bequest to mahalaxmi was not contingent on her surviving suraj but that she took a vested remainder which upon her death passed to her heirs. after considering the rival contentions of the parties we are of the opinion that no sufficient grounds have been made out for disturbing the unanimous opinion of the two courts below on the construction of this will. both the learned counsel eventually conceded that the language used in the will was consistent with the testator 's intention of conferring a life estate in the english sense as well as with the intention of conferring a hindu widow 's estate. it was however urged by mr rajah iyer that as no express or implied power of alienation for purposes of all legal necessities was conferred on the widow that circumstance negatived the view that the testator intended to confer upon his widow a hindu widow 's estate as she would get in case of intestacy. he also emphasized that the words of the gift over to the daughter as supporting his construction which was further reinforced by the words of the will limiting the widow 's estate till your lifetime and of the omission from therein of words such as nialik etc while describing the widow 's estate. mr krisbnaswami lyengar on the other hand contended that the absence of any words in the will restricting her powers of alienation and putting a restraint on them suggested a contrary intention and that the daughter 's estate was described as coming into being after the estate of the widow and was not conferred on her simultaneously with the widow and this connoted according to the notions of hindus a full hindu widow 's estate. in our judgment there is force in the contention of mr rajah iyer for reasons already stated and in the result therefore we dismiss this appeal with costs. appeal dismissed.

sections 221 to 232 of ipc are comprised under the first sub head and sections 233 to 240 in the second. sections 221 to 223 deal with the framing and content of charge section 224 deals with the interpretation of the language of the charge and section 225 with the effect of errors in the charge. sections 226 to 231 deal with the power of the court with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is no charge or where a new charge is to be framed. section 232 deals with the power of the appellate court or the high court when it discovers that there is material error in the charge. section 233 provides that for every distinct offence of which any person is accused there shall be a separate charge. but it also provides that this will be subject to the exceptions contained in sections 234 235 236 and 239. the first three provisions relate to the framing of charges against a single accused person. section 234 1 deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and section 231 2 what is meant by the expression offences of the same kind. this provision lifts partially the ban on the trial of a person for more than one offence at the same trial. section 2351 however goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same transaction. thus under this provision if the connection between the various offences is established the limitations placed by section 2341 both as regards the number and the period during which the offences are alleged to have been committed will not apply. sub section 2 of section 235 deals with a case where an offence falls within two definitions and sub s 3 deals with a case in which a number of acts are alleged against an accused person different combinations of which may constitute different offences. section 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and further provides that any number of such charges may be tried together. it also permits that charges could be framed against an accused person in the alternative if the court thinks fit. section 239 cls a and b cl a says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. this first thing to be noticed is that section 239 does not read as if its various clauses can be applied only alternatively. cl b says that persons accused of an offence and persons accused of abetment or of an attempt to commit such offence may also be charged and tried together. the opening words of the section show that it is an enabling provision and therefore the court has a discretion to avail itself cumulatively of two or more clauses. the concluding portion of section 239 shows that the provisions contained in the former part of chapter xix shall as far as may be apply to the charges framed with the aid of section 239. does this mean that the provisions of section 233 234 235 and 236 must also be complied with. obviously section 233 does not override the provisions of section 239 section 234 can not also be regarded as an overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences committed by them in the course of the same transaction they can not be tried also for offences of the same kind exceeding three in number and committed beyond a space of 12 months from the first to the last. it could not have been the intention of the legislature to create such a situation. again as already stated section 2341 does not override the provisions of section 2351 which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction. unless the court read section 2341 as not enacting a fetter on section 2351 it may not be possible to give full effect to the latter. it is under these provisions that the account books of the firms must be held to be relevant. what value to attach to them is another matter and would be for the court of fact to consider.

this is an appeal on a certificate article 1331 of theconstitution from a judgment and decree passed by the appellate bench of the high court of calcutta. modifying on appeal the judgment and decree passed by mr justice bose on the original side of that court. one dwarka nath ghose was the owner of considerable moveable and immoveable properties. on the 10th june 1891 he made and published his last will and testament whereby he dedicated to this family idol. shree shree iswar sridhar jew his two immoveable properties to wit. premises. No 41 and No 401. grey street in the city of calcutta. he appointed his two sons rajendra and jogendra executors of ms will and provided that his second wife golap sundari and the two sons rajendra and jogendra should perform the seva of the deity and on their death their heirs and successors would be entitled to perform the seva. dwarka nath died on the 16th march 1892 leaving him surviving his widow golap sundari and his two sons rajendra and jogendra. on the 19th july 1899 rajendra made and published his last will and testament whereby he confirmed the dedication made by dwarka nath with regard to premises nos. 41 and 401 grey street and appointed his brother jogendra the sole executor thereof. he died on the 31st january1900 and jogendra obtained on the 24th april 1900. probate of his said will. probate of the will of dwarka nath was also obtained by jogendra on the 31st august 1909. on the 4th september 1909 bhupendra jnanendra. and nagendra then a minor the three sons of rajendra filed a suit being suit No 969 of 1909on. the original side of the high court at calcutta against jogendra golap sundari and padma dassi the widow of sidheswar another son of rajendra for the construction of the wills of dwarka nath and rajendra for partition and other reliefs. the idol was not made a party to this suit. the said suit was compromised and on the 24th november 1910 a consent decree was passed whereby jogendra and golap sundari gave up their rights to the sevayatship and bhupendra jnanendra and nagendra became the sevaits of the idol a portion of the premises. 41 grey street was allotted to the branch of rajendra and the remaining portion was allotted to jogendra absolutely and in consideration of a sum of rs 6500 to be paid to the plaintiffs jogendra was declared entitled absolutely to the premises. No 401. grey street. the portions allotted to jogendra were subsequently numbered 402 a grey street and the portion of the premises. 41 grey street allotted to the branch of rajendra was subsequently numbered 41 a grey street. jogendra died on the 5th august 1911 leaving a will whereby he appointed his widow sushilabala the executrix thereof. she obtained probate of the will on the 6th august 1912. disputes arose between bhupendra jnanendra and nagendra the sons of rajendra and one kedar nath ghosh was appointed arbitrator to settle those disputes. the arbitrator made his award dated the 12th october 1920 whereby he allotted premises No 41 a grey street exclusively to nagendra as his share of the family properties. nagendra thereafter executed several mortgages of the said premises. the first mortgage was created by him in favour of snehalata dutt on the 19th may 1926. the second mortgage was executed on the 4th june 1926 and the third mortgage on the 22nd february 1927. on the 23rd february 1927 nagendra executed a deed of settlement of the said premises by which he appointed his wife labanyalata and his wife 's brother samarendra nath mitter trustees to carry out the directions therein contained and in pursuance of the deed of settlement he gave up possession of the said premises in favour of the trustees. snehalata dutt filed in the year 1929 a suit being suit No 1042 of 1929 against nagendra the trustees under the said deed of settlement and the puisne mortgagees for realisation of the mortgage security. a consent decree was passed in the said suit on the 9th september 1929. nagendra died in june 1931 and the said premises were ultimately put up for sale in execution of the mortgage decree and were purchased on the 9th december 1936 by hari charan dutt. hari pada. dutt and durga charan dutt for a sum of rs 19000. a petition made by the purchasers on the 12th january 1937 for setting aside the sale was rejected by the court on the 15th march 1937. haripada dutt died on the 3rd june 1941 leaving him surviving his three sons pashupati nath dutt shambhunath dutt and kashinath dutt the appellants before us. haricharan dutt conveyed ms one third share in the premises to them on the 4th march1944 and durga charan dutt conveyed his one third share to them on the 3rd may 1946. they thus became entitled to the whole of the premises which had been purchased at the auction sale held on the 9th december 1936. on the 19th july 1948 the family idol of dwarka nath sree sree iswar sridhar jew by its next friend debabrata ghosh the son of nagendra filed the suit out of which the present appeal arises against the appellants as also against susilabala and the two sons of jogendra by her amongst others for a declaration that the premises nos. 41 a and 402 a grey street were its absolute properties and for possession thereof for a declaration that the consent decree dated the 24th november 1910 in suit No 969 of 1909 and the award dated the 12th october 1920 and the dealings made by the heirs of jogendra. andor rajendra relating to the said premises or any of them purporting to affect its rights in the said premises were invalid and inoperative in law and not binding on it for an account of the dealings with the said premises for a scheme of management of the debutter properties and for its worship for discovery receiver injunction and costs. written statements were filed by the appellants and by susilabala and the two sons of jogendra denying the claims of the idol and contending inter alia that there was no valid or absolute dedication of the suit properties i to the idol and that the said premises had been respectively acquired by them by adverse possession and that the title of the idol thereto had been extinguished. the said suit was heard by mr justice bose who declared the premises. No 41 a. grey street to be the absolute property of the idol and made the other declarations in favour of the idol as prayed for. the idol was declared entitled to possession of the said premises with mesne profits for three years prior to the institution of the suit till delivery of possession but was ordered to pay as a condition for recovery of possession of the said premises a sum of rs 19000 to the appellants with interest thereon at the rate of 6 per cent. per annum from the 19th july 1945 till payment or till the said sum was deposited in court to the credit of the suit. the learned judge however dismissed the suit of the idol in regard to the premises. No 402 a grey street as in his opinion sushilabala as executrix to her husband 's estate and her two sons had acquired title to the said premises by adverse possession and the title of the idol thereto had been extinguished. the appellants filed on the 18th august 1950 an appeal against this judgment being appeal No 118 of 1950. the idol filed on the 20th november 1950 cross objections against the decree for rs 19000 and interest thereon as also the dismissal of the suit in regard to the premises. the appeal and the cross objections came on for hearing before harries c j and section n banerjee j who delivered judgment on the 5th march 1951 dismissing the said appeal and allowing the cross objection in regard to rs 19000 filed by the idol against the appellants. in regard however to the cross objection relating to premises. grey street which was directed against sushilabala and the two sons of jogendra the learned judges held that the cross objection against the co respondents was not maintainable and dismissed the same with costs. the appellants filed on the 31st may 1951 an application for leave to prefer an appeal to this court against the said judgment and decree of the high court at calcutta. a certificate article 1331 of theconstitution was granted on the 4th june 1951 and the high court admitted the appeal finally on the 6th august 1951. on the 22nd november 1951 the idol applied to the high court for leave to file cross objections against that part of the judgment and decree of the high court which dismissed its claims with regard to the premises no 402 a grey street. the high court rejected the said application stating that there was no rule allowing cross objections in the supreme court. the said cross objections were however printed as additional record. by an order made by this court on the 24th may 1953 the petition of the idol for filing cross objections in this court was allowed to be treated as a petition for special leave to appeal against that part of the decree which was against it subject to any question as to limitation. the appeal as also the petition for special leave to appeal mentioned above came on for hearing and final disposal before us. the appeal was argued but so far as the petition for special leave to appeal was concerned the parties came to an agreement whereby the idol asked for leave to withdraw the petition on certain terms recorded between the parties. the petition for special leave was therefore allowed to be withdrawn and no objection now survives in regard to the decree passed by the trial court dismissing the idol 's claim to the premises No 402 a. the appeal is concerned only with the premises. it was contended on behalf of the appellants that the dedication of the premises. 41 grey street made by dwarka nath under the terms of his will was a partial dedication and that his sons rajendra and jogendra and his widow golap sundari who were appointed sevayats of the idol were competent to deal with premises. No 41. grey street after making the due provision for the idol as they purported to do by the terms of settlement dated the 24th november 1910. it was further contended that nagendra by virtue of the award dated the 12th october 1920 claimed to be absolutely entitled to the premises. grey street and that his possession of the said premises thereafter became adverse which adverse possession continued for upwards of 12 years extinguishing the right of the idol to the said premises. the first contention of the appellants is clearly untenable on the very language of the will of dwarka nath. 3 of the said will provided with a view to provide a permanent habitation for the said deity i do by means of this will dedicate the aforesaid immovable property the said house. No 41 grey street together with land thereunder to the said sri sri issur sridhar jew. with a view to provide for the expenses of his daily and periodical sheba and festivals etc. the 3 12 cattahs three and half cattahs of rent free land more or less that i have on that very. grey street No 401. his also i dedicate to the sheba of the said sri sri sridhar jew salagram sila thakur. on my demise none of my heirs and representatives shall ever be competent to take the income of the said land No 401 and spend the samefor household expenses. if there be any surplus left after defraying the debsheba expenses the same shall be credited to the said sridhar jew thakur 's fund and with the amount so deposited repairs etc from time to time will be effected to the said house. No 41 with a view to preserve it and the taxes etc. in respect of the said two properties will be paid for the purpose of the carrying on the daily and periodical sheba and the festivals etc of the said sri issur sridhar jew salagram sila thakur my said second wife srimati golap moni dasi and 1st sriman rajendara nath and 2nd sriman jogendra nath ghose born of the womb of my first wife on living in the said house. No 41 grey street dedicated by me shall properly and agreeably to each other perform the sheba. of the said sri sri issur sridhar jew salagram sila thakur and on the death of my said two sons their representatives successors and heirs shall successively perform the sheba in the aforesaid manner and the executors appointed by this will of mine having got the said two properties registered in the calcutta municipality in the name of the said sri sri issur sridhar jew thakur shall pay the municipal taxes etc. and shall take the municipal bills in his name. none of my representatives heirs successors executors administrators or assigns shall have any manner of interest in or right to the said two debutter properties and no one shall ever be competent to give away or effect sale mortgage or in respect of the said two properties nor shall the said two properties be sold on account of the debts of any one. t is quite true that a dedication may be either absolute or partial. the property may be given out and out to the idol or it may be subjected to a charge in favour of the idol. the question whether the idol itself shall be considered the true beneficiary subject to a charge in favour of the heirs or specified relatives of the testator for their upkeep or that on the other hand these heirs shall be considered the true beneficiaries of the property subject to a charge for the upkeep worship and expenses of the idol is a question which can only be settled by a conspectus of the entire provisions of the will pande har narayan v surja kunwari 1921 l r 48 i a 143 145 146 1921 indlaw pc 56. what we find here in cl. 3 of the will is an absolute dedication of the premises. grey street to the idol as its permanent habitation with only the right given to the sevayats to reside in the said premises for the purposes of carrying on the daily and periodical seva and the festivals etc. of the deity. the said premises are expressly declared as dedicated to the deity. they are to be registered in the municipal records in the name of the deity the municipal bills have got to be taken also in his name and none of the testator 's representatives heirs successors executors administrators or assigns is to have any manner of interest in or right to the said premises or is to be competent to give away or effect sale mortgage etc. of the said premises. there is thus a clear indication of the intention of the testator to absolutely dedicate the said premises to the deity and it is impossible to urge that there was a partial dedication of the premises to the deity. the only thing which was urged by shri n c chatterjee in support of his contention was that the right to reside in the premises was given to the sevayats and that according to him detracted from the absolute character of the dedication. this argument however can not avail the appellants. it was observed by lord buckmaster in delivering the judgment of the privy council in gnanendra nath das v surendra nath das 1920 24 c w n 1926 at p 1030. in that case it is provided that the shebait for the time being shall be entitled to reside with his family in the said dwelling house but the dwelling house itself is the place specially set apart for the family idols to which specific reference is made in the will and in their lordships opinion the gift is only a perfectly reasonable arrangement to secure that the man in whose hands the supervision of the whole estate is vested should have associated with his duties the right to reside in this named dwelling place. the first contention of the appellants therefore fails and we hold that the dedication of the premises. 41 grey street to the idol was an absolute dedication. regards the second contention viz the adverse possession of nagendra it is to be noted that under the terms of cl 3 of the will of dwarka nath the representatives successors and heirs of his two sons rajendra and jogendra were successively to perform the seva in the manner therein mentioned and nagendra was one of the heirs and legal representatives of rajendra. he was no doubt a minor on the 24th november 1910 when the terms of settlement were arrived at between the parties to the suit 1909. his two elder brothers jnanendra and bhupendra were declared to be the then sevayats but a right was reserved to nagendra to join with them as a sevayat on his attaining majority. so far as nagendra is concerned there is a clear finding of fact recorded by mr justice bose on a specific issue raised in that behalf viz did nagendra act as shebait of the plaintiff deity under the wills of dwarka nath ghosh and rajendra nath ghosh. that he did act as such shebait and that his possession of the premises. No 41a grey street was referable to possession on behalf of the idol 30 this finding was not challenged in the appeal court and it is too late to challenge the same before us. if nagendra was thus a sevayat of the idol it could not be urged that his possession could in any manner whatever be adverse to the idol and his dealings with the said premises in the manner he purported to do after the 12th october 1920 could not be evidence of any adverse possession against the idol. he position of the sevayat and the effect of his dealings with the property dedicated to the idol has been expounded by rankin c j in surendrakrishna ray v shree shree ishwar bhubaneshwari thakuran 1933. cal 54 1932 indlaw cal 59. but in the present case we have to see whether the possession of two joint shebaits becomes adverse to the idol when they openly claim to divide the property between them. the fact of their possession is in accordance with the idol 's title and the question is whether the change made by them in the intention with which they hold evidenced by an application of the rents and profits to their own purposes and other acts extinguishes the idol 's right. i am quite unable to hold that it does because such a change of intention can only be brought home to the idol by means of the shebait 's knowledge and the idol can only react to it by the shebait. adverse possession in such circumstances is a notion almost void of content. true any heir or perhaps any descendant of the founder can bring a suit. against the shebaits on the idol 's behalf and in the present case it may be said that the acts of the shebaits must have i been notorious in the family. but such persons have no legal duty to protect the endowment and until the shebait is removed or controlled by the court he alone can act for the idol. we are in perfect accord with the observations made by rankin c j if a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. the shebait for the time being is the only person competent to safeguard the interests of the idol his possession of the dedicated property is the possession of the idol whose sevait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property against the idol. no shebait can so long as he continues to be the sevait ever claim adverse possession against the idol. neither nagendra nor the appellants who derive their title from the auction sale held on the 9th december 1936 could therefore claim to have perfected their title to the premises. grey street by adverse possession. the second contention of the appellants also therefore fails. the further contention urged on behalf of the appellants in regard to the disallowance of the sum of rs 19000 by the appeal court could not be and was not seriously pressed before us and does not require any consideration. he result therefore is that the appeal fails and must stand dismissed with costs. appeal dismissed.

the facts disclose the commission of the offence of criminal misconduct as defined in section 51d read with section 52 of the prevention of corruption act 1947 by major som nath accused. under 51c a public servant is said to commit the offence of misconduct in the discharge of his duty if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do and under d if he by corrupt or illegal means or by otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage.

this appeal with special leave is directed against the judgment and order of the labour appellate tribunal of india in a dispute regarding the workers claim for bonus. during the year 1948 the appellant made a profit of rs 1197648 11 9. it paid 24 3 per cent. dividend on ordinary shares being the maximum that could be paid under the public companies limitation of dividend ordinance of 1948 and also paid to the workers their full share of bonus at annas 4 in a rupee of their basic earnings. during the year 1949 the selling rates for cloth and yarn were controlled by the government and were approximately 4 per cent. below those obtained in 1948. the basic wages were increased from the 1st december 1948 by order of the government of uttar pradesh and the total wages paid were therefore higher than those in the previous year. there was moreover indiscipline amongst the workers and production suffered. there was a strike in the month of october and the mills were closed for nearly a month. further the management were unable to secure cotton which resulted in the curtailment of the working hours. as a result of all these circumstances the appellant suffered a trading loss of rs 502563 1 10. a sum of rs 250000 being the excess reserve for taxation was written back and a sum of rs 1001871 13 5 being the amount of reserve transferred from the investment account was also brought in. an aggregate sum of rs 1251871 13 5 was thus brought into the balance sheet by these two transfers. the trading loss was deducted from this amount leaving a credit balance of rs 749308 11 7 and that amount was shown as the profit for the year 1949 in the balance sheet for that year. the balance which had been brought forward from the previous year was added thereto and a dividend of 2434 per cent. was paid to the ordinary shareholders. the appellant also paid ex gratia to the workmen bonus at the rate of annas 2 per rupee of their basic earnings making it clear by their notification dated the 7th april 1950 that the directors had sanctioned the payment at that rate in spite of the appellant having suffered a trading loss for the year that it was being paid entirely at the discretion of the appellant and was not related to or connected with any contract of employment of any worker. on the 4th may 1950 the secretary of the respondent union petitioned to the provincial conciliation officer textile that there was more production in 1949 than in 1948 that there was no reason to hold that the profit in 1949 was less than in the previous year and that the rate of bonus was wrongly reduced and asked that bonus for 1949 should also be paid at the rate of annas 4 per rupee. the industrial dispute which thus arose was referred for enquiry and recording of an award to the regional conciliation board textile kanpur. the conciliation board by a majority decision repelled the contention of the appellant and awarded the payment of bonus at annas 4 per rupee. on an appeal taken by the appellant to the industrial court textiles and hosiery kanpur the industrial court accepted the contention of the appellant allowed the appeal and set aside the award. the respondent thereupon appealed to the labour appellate tribunal which substantially agreed with the industrial court on questions of fact as well as the general position in law but imported considerations of social justice and treating this as a special case where social justice would demand that labour should have bonus for the year where for that very year capital had not only a reasonable return but much in excess of that allowed the appeal and directed the appellant to pay to the workmen bonus at the rate of annas 4 per rupee within six weeks of their decision. the appellant filed this appeal against that decision after obtaining special leave from this court. both the industrial court as well as the labour appellate tribunal found as a fact that there was a trading loss of rs 502563 1 10 during the year 1949 and also. that the dividend of 2434 per cent. to the ordinary shareholders was distributed after transferring the aggregate sum of rs 1251871 13 5 from the reserves. the question which therefore arises for our consideration is mainly whether the workers are entitled to the payment of a bonus in spite of the employer having worked at a loss during the year and incidentally whether the workers have any right title or interest in the reserves and the undistributed profits of the previous years. the primary meaning of the word bonus according to the definition given in the new english dictionary is a boon or gift over and above what is nominally due as remuneration to the receiver and which is therefore something wholly to the good. this definition was adopted by stirling j in in re eddystone marine insurance co l r i894 w n 30 webster 's international dictionary defines bonus as something given in addition to what is ordinarily received by or strictly due to the recipient. the oxford concise dictionary defines it as something to the good into the bargain and as an example gratuity to workmen beyond their wages. corpus juris secundum volume xi at page 515 ascribes the following meanings to the word bonus an allowance in addition to what is usual current or stipulated a sum given or paid beyond what is legally required to be paid to the recipient something given in addition to what is ordinarily received by or strictly due to the recipient and adds it has been said to carry the idea of something uncertain and indefinite something which may or may not be paid depending on varying circumstances and under particular conditions has been said to imply a benefit accruing to him who offers it and an inducement to the offeree. this imports the conception of a boon a gift or a gratuity otherwise described as an ex gratia payment. the word bonus has however acquired a secondary meaning in the sphere of industrial relations. it is classified amongst the methods of wage payment. it has been used especially in the united states of america to designate an award in addition to the contractual wage. it is usually intended as a stimulus to extra effort but sometimes represents the desire of the employer to share with his workers the fruits of their common enterprise. vide encyclopaedia britannica volume iii page 856. the pocket part of the corpus juris secundum volume xi under the heading as compensation for services quotes the following passage from attorney general v city of woburn 317 mass 465 the word bonus is commonly used to denote an increase in salary or wages in contracts of employment. the offer of a bonus is the means frequently adopted to secure continuous service from an employee to enhance his efficiency and to augment his loyalty to his employer and the employee 's acceptance of the offer by performing the things called for by the offer binds employer to pay the bonus so called. it also gives another meaning of the word bonus viz increased compensation for services already rendered gratuitously or for a prescribed compensation where there is neither express or implied understanding that additional compensation may be granted. this imports the conception that even though the payment be not strictly due to the recipient nor legally enforceable by him a claim to the same may be laid by the employee under certain conditions and if such claim is entertained either by an agreement with the employer or by adjudication before a properly constituted tribunal as on an industrial dispute arising. the same would ripen into a legally enforceable claim. this position was recognised in sutton v attorney general 1923. t l r 294 297 where the earl of birkenhead observed the term bonus may of course be properly used to describe payments made of grace and not as of right. but it nevertheless may also include as here payments made because legally due but which the parties contemplate will not continue indefinitely and in national association of local government officers v bolton corporation 1943. a c 166 i87 this payment if made can not properly in my opinion be regarded as a mere gratuity. though there is an element of bounty in it the bounty if granted is given for good reasons of national policy. i do not see why this does not fall within the definition of trade dispute just as much as a dispute as to the rate of wages or salary. to a similar effect are the observations in kenicott v supervisors of wayne county 1873 83 u s 452 21 l ed. but second the meaning of the word bonus is not given to it by the objection. it is thus defined by webster. a premium given for a loan or a charter or other privilege granted to a company as the bank paid a bonus for its charter a sum paid in addition to a stated compensation. it is not a gift or gratuity but a sum paid for services or upon a consideration in addition to or in excess of that which would ordinarily be given 12. and also in great western garment co ltd v minister of national revenue 1948. d l r 25 233. a bonus may be a mere gift or gratuity as a gesture of goodwill and not enforceable or it may be something which an employee is entitled to on the happening of a condition precedent and is enforceable when the condition is fulfilled. but in both cases it is something in addition to or in excess of that which is ordinarily received. the textile labour inquiry committee defined bonus as follows the term bonus is applied to a cash payment made in addition to wages. it generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained. there are however two conditions which have to be satisfied before a demand for bonus can be justified and they are 1 when wages fall short of the living standard and 2 the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. the demand for bonus becomes an industrial claim when either or both these conditions are satisfied. the principles for the grant of bonus were discussed and a formula was evolved by the full bench of the labour appellate tribunal in millowners association bombay v rashtreeya mill mazdoor sangh bombay 1950. 2 l l j 247as. both labour and capital contribute to the earnings of the industrial concern it is fair that labour should derive some benefit if there is a surplus after meeting prior or necessary charges and the following were prescribed as the first charges on gross profits viz 1 provision for depreciation 2 reserves for rehabilitation 3 a return at 6 per cent. on the paid up capital. a return on the working capital at a lesser rate than the return on paid up capital. the surplus that remained after meeting the aforesaid deductions would be available for distribution as bonus. it is therefore clear that the claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. if in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. bonus is not a deferred wage. because if it were so it would necessarily rank for precedence before dividends the dividends can only be paid out of profits and unless and until profits are made no occasion or question can also arise for distribution of any sum as bonus amongst the employees. if the industrial concern has resulted in a trading loss there would be no profits of the particular year available for distribution of dividends much less could the employees claim the distribution of bonus during that year. this has been clearly recognised even in the various decisions of the labour appellate tribunal e g nizam sugar factory ltd hyderabad v their workmen 1952. i l l j 386 textile mills madhya pradesh v their workmen 1952 2 l l j 625and famous cine laboratory v their workmen 1953. i l l j 466this was also the basis of the demand of the respondent in the case before us its case being that the appellant had reaped substantial profits during the year 1949. this case was negatived by the industrial court as well as the labour appellate tribunal both of whom held that the working of the appellant during the year 1949 had resulted in a loss. whereas the industrial court declined to grant the respondent any relief because the working of the appellant during the year had resulted in a loss the labour appellate tribunal made a special case for the respondent in spite of its concurrence with that finding of the industrial court. it is significant to observe that this principle was accepted by the labour appellate tribunal itself. as at present advised a claim for bonus which had been rested on profits earned should ordinarily be determined on the basis of the profits earned in the year under claim and that the scale of bonus should be determined on the quantum of profits earned in the year. so it would follow that if there is trading loss in the year under claim bonus should not ordinarily be awarded. it however observed but in our opinion that should not be the universal rule. considerations of social justice can not be disregarded altogether in relations between capital and labour. there may be special cases and we consider the case before us to be one where social justice would demand that labour should have bonus for the year where for that very year capital had not only a reasonable return but much in excess of that. the labour appellate tribunal did not accept the contention of the respondent that bonus should be linked to dividends nor did it rest its decision on the respondent having a right title and interest in the reserves and the undistributed profits of the appellant. linking of bonus to dividend would obviously create difficulties. because if that theory was accepted a company would not declare any dividends but accumulate the profits build up reserves and distribute those profits in the shape of bonus shares or reduce the capital in which event the workers would not be entitled to claim anything as and by way of bonus. the workers not being members of the company would also not have any right title and interest in the reserves or the undistributed profits which would form part of the assets of the company. even on a winding up of a company the property of the company would be applied in satisfaction of its liabilities pari passu and unless the articles of association of the company otherwise provided in distribution amongst the members according to their rights and interest in the company. the employees would in no event be entitled to any share or interest in the assets and the capital of the company. a transfer of moneys from these reserves or the undistributed profits would therefore not enure for the benefit of the workers. the shareholders only would be entitled to such benefit and the mere fact that dividends were declared and paid to the shareholders out of such reserves and undistributed profits would not entitle the workers to demand bonus when in fact the working of the industrial concern during the particular year had showed a loss. it has also got to be remembered that the labour force employed in an industrial concern is a fluctuating body and it can not be predicated of the labour force in a particular year that it represents the past and the present workers so that it can claim to demand bonus out of the reserves or undistributed profits of the previous years. on the accounts of each year being made up and the profits of the industrial concern being ascertained the workers during the particular year have their demand for bonus fully satisfied out of the surplus profits and the balance of profits is allocated and carried over in the accounts. no further claimed payment of bonus out of those reserves or undistributed profits can therefore survive. to admit the claim for bonus out of the reserves transferred to the profit and loss account would tantamount to allowing a second bonus on the same profits in respect of which the workers had already received their full bonus in the previous year. the labour force which earns the profits of a particular year by collaborating with the employers is distinct from the one which contributed to the profits of the previous years and there is no continuity between the labour forces which are employed in the industrial concern during the several years. the ratio which applies in the case of the shareholders who acquire the right title and interest of their predecessorsin interest does not apply to the labour force and the fact that the shareholders get a dividend by transfer of funds from the reserves and undistributed profits of the previous years would not entitle the workers to demand bonus out of those funds if the working of the industrial concern during the particular year has resulted in a trading loss. the considerations of social justice imported by the labour appellate tribunal in arriving at the decision in favour of the respondent were not only irrelevant but untenable. social justice is a very vague and indeterminate expression and no clear cut definition can be laid down which will cover all the situations. mr isaacs the learned counsel for the respondent. attempted to give a definition in the following terms social justice connotes the balance of adjustments of the various interests concerned in the social and economic structure of the state in order to promote harmony upon an ethical and economic basis and he stated that there were three parties concerned here viz the employers the labour and the state itself and the conception of social justice had to be worked out in this context. without embarking upon a discussion as to the exact connotation of the expression social justice we may only observe that the concept of social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation. indeed the full bench of the labour appellate tribunal evolved the abovequoted formula with a view to dispensing social justice between the various parties concerned. it adopted the following method of approach at page 1258 of that judgment our approach to this problem is motivated by the requirement that we should ensure and achieve industrial peace which is essential for the development and expansion of industry. this can be achieved by having a contented labour force on the one hand and on the other hand an investing public who would be attracted to the industry by a steady and progressive return on capital which the industry may be able to offer. this formula was reiterated in textile mills m p their workmen 1952 2 l l j 625 and famous cine laboratory v their workmen 1953 1 l l j 466 and in the latter case it deprecated the idea of adjudicators importing considerations of social justice which were not comprised in that formula and what is social justice. social justice is not the fancy of any individual adjudicator if it were so then ideas of social justice might vary from adjudicator to adjudicator over all parts of india. in our full bench decision see 1950 2 l l j 1247 we carefully considered the question of social justice in relation to bonus and there we equated the rights and liabilities of employers and workmen with a view to achieving a just formula for the computation of bonus. that full bench decision stands and this tribunal and all other tribunals are bound by it. without committing ourselves to the acceptance of the above formula in its entirety we may point out that the labour appellate tribunal did not apply its own formula to the facts of the present case. it is also significant to note that even while importing considerations of social justice the labour appellate tribunal was oblivious of the fact that it was by their own acts of indiscipline and strike that the workers of the appellant company themselves contributed to the trading losses incurred by the appellant and it hardly lay in their mouth then to contend that they were none the less entitled to a payment of bonus commensurate with the dividend paid to the shareholders out of the undistributed profits of the previous years. the labour appellate tribunal also overlooked the fact that but for the public companies limitation of dividend. ordinance of 1948 the whole of the profits of 1948 could have been distributed after paying the workers bonus in that year of four annas in the rupee. we may before concluding refer to an argument which was addressed to us by mr isaacs the learned counsel for the respondent that this court under article 136 should not interfere with the decisions of the tribunals set up by the industrial disputes act 1947. this contention can be shortly answered by referring to our decision in bharat bank ltd delhi v employees of the bharat bank ltd delhi 1950 s c r 459 1950 indlaw sc 48 where we held that the industrial tribunals were tribunals within the meaning of article 136 and further that article 136 has vested in this court exceptional and overriding power to interfere where it reaches the conclusion that a person has been dealt with arbitrarily or that a court or tribunal within the territory of india has not given a fair deal to a litigant. vide dhakeswari cotton mills ltd v commissioner of income tax west bengal 1954 indlaw sc 213. the result therefore is that the decision of the labour appellate tribunal appealed against must be reversed and that of the industrial court textiles and hosiery kanpur restored. the appeal will accordingly be allowed with costs. appeal allowed.

section 9 of the travancore land conservancy act 4 of 109 is in the following terms. any person unauthorised occupying any land for which he is liable to pay a fine under section 6 and an assessment or prohibitory assessment under section 7 may be summarily evicted by the division peishkar and any crop or other product raised on the land shall be liable to forfeiture and any building or other structure erected or anything deposited thereon shall also if not removed by him after such written notice as the division peishkar may deem reasonable be liable to forfeiture. forfeiture under this section shall be disposed of as the division peishkar may direct. an eviction under this section shall be made in the following manner namely by serving a notice on a person reported to be in occupation or his agent requiring him within such time as the division peishkar may deem reasonable after receipt of the said notice to vacate the land and if such notice is not obeyed by removing or deputing a subordinate to remove any person who may refuse to vacate the same and if the officer removing any such person shall be resisted or obstructed by any person the division peishkar shall hold a summary enquiry into the facts of the case and if satisfied that the resistance or obstruction still continues may issue a warrant for the arrest of the said person and on his appearance may send him with a warrant in the form of the schedule for imprisonment in the civil jail of the district for such period not exceeding 30 days as may be necessary to prevent the continuance of such obstruction or resistance. provided that no person so committed or imprisoned under this section shall be liable to be prosecuted under sections 176 179 and 181 of the travancore penal code in respect of the same facts.

the respondent No. i was tried before the court of sessions visakhapatnam for offences under section 120 b indian penal code section 409 section 477 a and section 471 read with section 467 i p c while respondent No 2 was tried for an offence under section 120 b and for offences under sections 409 read with section 109 477 a and 471 read with section 467 i p c each of the respondents was convicted of the first two offences but. the respondent No i alone was convicted of the other two offences. various sentences were passed against them by the additional sessions judge visakhapatnam who presided over the court. the respondents preferred appeals before the high court challenging their convictions and sentences. the state on the other hand preferred an application for revision under section 439 cr. p c for the enhancement of the sentences passed on the respondents. the high court allowed the two appeals acquitted the respondents and dismissed the application for revision preferred by the state. the state of andhra pradesh has come up before this court in appeal by obtaining special leave under article 136 of the constitution. the prosecution case in so far as it is material for the decision of this appeal is as follows. in the year 1929 the andhra engineering co which was originally a partnership firm formed by one d l n raju was converted into a private limited company with its headquarters at visakhapatnam. we shall refer to this company throughout as the aeco. it obtained licences from the government under the electricity act for supply of electrical energy to visakhapatnam anakapalli and some other places. as the aeco did not have the necessary capital to undertake the work raju floated in the year 1933 a public limited company called visakhapatnam electric supply corporation ltd and another in the year 1936 called the anakapalli electric supply corporation ltd the aeco transferred its licences for the supply of electrical energy to the consumers of visakhapatnam to vesco and similarly transferred to aeco the licence to supply electrical energy to consumers at anakapalli. the aeco was appointed managing agent for each of these corporations under separate agreements. some time later other industrial concerns the andhra cements ltd vi jayawada and the east coast ceremics. rajahmurthy were started apparently by raju himself and the aeco was appointed the managing agent of each of these concerns. the original managing agency agreement in favour of aeco with respect to vesco was for a period of 15 years i e from 1933 to 1948 and was later renewed for the remaining term of the currency of the licence granted by the government under the electricity act. a mention may be made of the fact that in june 1952 the vesco undertaking was acquired by the government under the provisions of the electricity undertaking acquisition act but nothing turns on it. the vesco had its own board of directors while the aeco had also its own separate board of directors. the vesco had no managing director but at each meeting of its board of directors one of the directors used to be elected chairman. the same practice was followed at the meeting of the general body of the shareholders. the aeco on the other band always had a managing director first of whom was d l n raju. he died in the year 1939 and was succeeded by r k n g raju an advocate of rajahmundry. this person however did not shift to visakhapatnam on his becoming the managing director but continued to stay most of the time at rajahmundry. according to the prosecution both these concerns were running smoothly and efficiently during the lifetime of d l n raju because he was personally attending to their affairs. his successor however apart from the fact that be continued to be staying mostly at rajahmundry was also interested in several other ventures including a sugar factory at dewas in central india. eventually many of those ventures failed. according to the prosecution the second raju was not bestowing sufficient care and attention on the affairs of vesco. the aeco as managing agents of vesco had appointed in the year 1939 one d v appala raju a trusted employee as its representative and as the secretary of vesco. in 1944 this person resigned from his appointments and started his own business in radio and electrical goods in the name of d brothers. he was succeeded by t visweswara rao p w 6 an employee of the aeco. the respondent No 1. ganeswara rao was also an old employee of aeco having been appointed a stenotypist in the year 1923 on an initial salary of rs p m eventually he became the head clerk therein. he pressed his claim for appointment as secretary of vesco and representative of the managing agents at visakhapatnam and r h g raju appointed him to that post. all this is not disputed. the respondent No 1 even after his appointment on two posts connected with vesco continued to work with the aeco also whose business had by then been confined only to that of managing agents of the four companies floated by d l n raju. it is the prosecution case that as secretary of vesco and the resident representative of the managing agents the respondent No i was attending to the day to day affairs of vesco which included the receiving of all sums of money due to vesco spending money for the purpose of vesco attending to the appointment supervision and control of the staff of vesco purchasing materials required for the purpose of vesco and supervising over the accounts of vesco. he was thus all important with respect to the every day affairs of vesco. his dual capacity enabled the respondent No i to earn the confidence not only of the directors of aeco but also of those of vesco. the accounts maintained by the vesco used to be explained by him not only to the directors but also to the shareholders. the knowledge of the financial position of vesco obtained by them used to be derived essentially from the respondent No 1. as secretary of vesco it was his duty to convene the meetings of the board of directors to present before them the periodical statement of receipts and expenditure of vesco to convene meetings of the general body to prepare the managing agents report and the director 's report as also to see to the presentation of auditors report and the statement of accounts. the explanations of the managing agents and the directors of vesco with respect to the items mentioned in the orders of the board used also to be placed by him before the shareholders. it was also his duty to have the accounts of vesco audited by the auditors elected by the general body and to produce before the auditors the relevant accounts vouchers bank statements and so on. there were no complaints about the management of the affairs of vesco or the aeco till the end of 1946 or the beginning of 1947. one significant fact however which occurred prior to 1946 is referred to by the prosecution. till the year 1945 messrs c p rao co a firm of chartered accountants were the auditors of vesco but after the respondent No i became secretary. one b rajan was elected auditor not only for vesco but for all the other four concerns including aeco. this person was auditor for greenlands hotel at visakhapatnam. of which the respondent No i was a director. r k n g raju took till towards the end of 1947 and died at madras in april 1948. according to the prosecution the respondent No i wanted to take advantage of this fact and conceived of a scheme for misappropriating as much money belonging to vesco as possible before the managing agency agreement of aeco came to an end in october 1948. i secured the promotion of the approver k v ramana who was originally accounts clerk to the post of senior accountant. similarly k v gopala raju was transferred from the post of stores clerk to the general department and k s n murty the discharged accused was appointed stores clerk in his place. later however murty was also got transferred to the general section and replaced by p w 18. srinivasa rao originally a stores boy. the approver who was originally an accounts clerk with the aeco was it may be mentioned appointed a cashier in vesco in 1946 at the instance of the respondent No i and was thus beholden to him. he was later promoted as senior accountant and in his place the respondent No 2. laksbminarayana rao was appointed the cashier. according to the prosecution the respondent No i took both the approver and lakshminarayana rao in his confidence as also some other persons known and unknown for carrying out his nefarious purpose namely the misappropriation of the funds of vesco during the subsistence of aeco 's managing agency of vesco. the conspiracy is said to have been hatched in the year 1947 and falsification of accounts and misappropriation of funds of vesco went on till the end of the accounting year. the term of the managing agency was renewed in 1943 and aeco con tinued to be managing agents until the vesco was taken over by the government in 1952. i continued to be the secretary of vesco and resident representative of the managing agents throughout the period of conspiracy. after the death of r k n g raju it was discovered that the aeco was indebted to many concerns which were under its managing agency the liability being shown either as that of aeco or that of r k n g raju personally. again the vesco was shown as indebted to the andhra cement to the extent of rs 42 000. this amount was however paid by the aeco from the funds of vesco. i and some of his friends were in search of a rich and substantial man who would be amenable to them to fill the post of managing director of aeco. eventually their choice fell on g v subba raju p w 25 a resident of manchili who held a large number of shares in the aeco and who was besides related to r k n g raju by marriage. it is said that this person has not received much education and knows only bow to sign his name in english. he was assured that by consenting to become the managing director be would not be required to discharge onerous duties and that the respondent No i would look to all the affairs of vesco. he was also told that apart from signing important papers which may be sent to him by the respondent No i from time to time to manchili or wherever be might be would have no work to do. he agreed and was elected managing director of aeco in the middle of 1948. upon this understanding he accepted the position offered to him. the vesco used to receive large amounts of money from high tension power consumers such as the railways k g hospital the port administration the andhra university etc. by cheques. but domestic consumers usually paid their bills in cash to the bill collectors who used to hand over their collections to the respondent No 2. the respondent No 2 was asked by the respondent No i to maintain a private note book. in that book payments which used to be made by respondent No 2 on the basis of slips issued by the respondent No i used to be noted and the amount totalled up at the end of the day. this amount was posted in vesco 's cash handover book as by safe indicating that this amount was kept in the safe though in fact it was not. on the basis of the entries in the handover book the final accounts were written up. i opened four personal accounts in different banks including the imperial bank of india. when the respondent No i had to issue a personal cheque on any of these banks he used to ask the second respondent to send an equivalent amount to the bank concerned for being credited to his account. these amounts also used to be noted in the private note book and entered. another thing which the respondent No i initiated was opening a heading in the ledger called advance purchase of materials. amounts which had been misappropriated used to be posted therein though in fact no orders were placed for any material. it may be mentioned that subba raju used to visit visakhapatnam twice a month and check up the account books. at that time it used to be represented to him that the amounts which were shown to be in the safe and not found therein had been sent to the bank for being deposited. apparently subba raju was fully satisfied with this and other explanations and therefore he appointed one c section raju who was the manager of andhra cements to supervise over the affairs of vesco apparently because of this a new method of misappropriation was adopted by the respondents by starting in the vesco account books an account called suspense account. a lakh of rupees passed through that account. amounts which were misappropriated used to find their way in this account. a new cash book was also said to have been prepared by the conspirators with the object of covering up the misappropriations which had been made. subba raju was not satisfied with the nature of supervision exercised by c section raju over the affairs of vesco because he used to look only at the cash book entries of the days on which he paid visits to vesco 's office to which he used to go with previous intimation. besides that c section raju 's management of andhra cements had landed it into a loss of rs 30 000. because of all these things he had c section raju replaced towards the end of the year 1951 by one subbaramayya a retired finance officer from the madras electricity board both as a director of andhra cements and as a supervisor over the accounts of vesco. subbaramayya took his work seriously and called for information on a number of points from the respondent No 1. he however was unable to obtain any information. in january 1952 he therefore brought one section g krishna aiyar who had vast experience in the maintenance of accounts of electrical undertaking 's having been chief accountant of the south madras electric supply corporation to undertake an investigation and then to act as financial adviser. in the meantime on november 29 1951 there was a meeting of the general body at which the accounts were among other things to be considered. there was a considerable uproar at that meeting because the respondent No 1 said that the auditor 's report had not been received. the shareholders felt that the report had been received but was being suppressed or deliberately withheld. however the meeting was postponed and eventually held on december 9 1951. on that date the respondent No 1 produced the auditor 's report. according to the prosecution the report is a forged document. that was also the feeling of a number of shareholders who wanted to see the original but one dutt who was chairman of the meeting after seeing exhibit p 234 said that the report seemed to be a genuine one. section g krishna aiyar after his appointment in january 1952 made close enquiry and submitted an interim report. that report showed that during the period 1948 49 rs 33 271 10 0 shown as paid to the andhra power system were in fact not paid. the respondent No 1 on being asked to explain said that he would give his explanation to the managing director. the interim report showed that there was a shortage of about rs 90 000 for this period. on february 12 1952 the respondent No i wrote to the managing director admitting his responsibility and agreed to make good the amounts found short or such other amounts as would be found short up to the end of march 1952. further scrutiny of the accounts was being carried out by krishna aiyar and in his subsequent report he pointed out that rs 2 38 000 which were shown as having been paid to the andhra power system had actually not been paid. in fact in april 1952 the collector attached vesco properties for realising this amount. on april 30 1952 the respondent No 1 by selling some of his property himself paid rs 50 000 to the andhra power system towards the sum due to it from vesco and had promised to pay the balance shortly thereafter. he was given time for doing so but he failed to pay it. the directors of vesco thereafter authorised k section dutt one of the directors to lodge a complaint with the police which he accordingly lodged on may 19 1952. on the next day the police placed an armed guard around the office of the respondent No i and seized a number of papers. as a result of investigation they found that there was a total misappropriation of rs 3 40 000. on may 13 1954 a chargesheet was filed against the two respondents as well as murti and the approver ramana. od september 13 1954 ramana offered to make a full confession to the additional district magistrate independent who was empowered to grant pardon under section 337 of i he code of criminal procedure. he however directed ramana to make his confession before a submagistrate. the latter accordingly made a confession on november 15 1954 and on november 17 1954 the additional district magistrate independent granted him pardon and that is how he came to be examined as a witness in this case. as already stated the additional sessions judge convicted both the respondents the respondent No i in respect of each head of the offences with which he was charged and the respondent No 2 in respect only of the offences of conspiracy and misappropriation. the high court set aside the conviction of the respondents on a number of grounds. in the first place according to the high court joint trial of two or more persons in respect of different offences cornmitted by each of them is illegal and that here as they were charged with having committed offences under section 120 b section 409 section 477 a and section 476467 i p c they could not be tried jointly. according to it the provisions of section 239 were of no avail. next according to the high court even if section 239 is applicable its provisions are subject to those of section 234 and as such the trial being for more than three offences was impermissible. then according to the high court offences under. section 409 and section 471467 are of different kinds and are not capable of joint commission. therefore they could not be jointly tried. further according to the high court where a conspiracy has yielded its fruits the conspirators can be charged with the actual offences committed and not with conspiracy to commit those offences. charge of conspiracy according to the high court can be validly made only when the prosecution establishes that every conspirator expected to receive a personal benefit from it and that the prosecution has not been able to establish that the respondent No 2 or the approver evidently had any such expectations since they did not in fact receive any corresponding benefit. in so far as the respondent No 2 is concerned the high court has held that since he was charged with a specific offence under s 409 i p c he could not be convicted of mere abetment of an offence. the approver 's evidence was held by the high court to be inadmissible because the pardon granted to him was illegal. the high court has also held that his evidence is unreliable and further that the additional sessions judge was in error in allowing him to refresh his memory by referring to various documents in a manner not permitted by section 159 of the evidence act. the high court has further stated that inadmissible evidence was taken on record by the additional sessions judge namely account books of billimoria brothers maintained in gujrati and further that the additional sessions judge was in error in allowing the prosecution to use those account books for establishing absence of entries with regard to certain payments alleged in the vesco books to have been made to them. finally the high court held that the examination of the respondent under section 342 of the code was unfair for a number of reasons and that the additional sessions judge had failed to perform an important duty in that he did not call the attention of the respondents to the provisions of section 342 which enable an accused person to give evidence in his own behalf. mr bhimasankaram appearing for the two respondents however has not sought to support the judgment of the high court on all these points. the points which he urged are briefly these 1 that there was a misjoinder of charges and persons in that the various provisions of section 239 were clubbed together and an omnibus charge of conspiracy was framed which on its face was one likely to embarrass the respondents and make their task of defending themselves difficult. the procedure adopted in the investiga tion and committal stages was irregular. 3 irrelevant evidence was introduced and some evidence was introduced in a manner not authorised by the evidence act. 4 that the court abused its powers under s 342 cr. p c while conducting the examination of the respondents. the evidence of the approver was inadmissible because the pardon granted to him was illegal that in any case it is unreliable was so found even by the sessions judge and must therefore be rejected. if the evidence of the approver is left out the remaining evidence would be inadequate to sustain the prosecution case. we shall deal with mr bhimasankaram 's contentions in the order in which we have set them out. the first question for consideration is whether there was a misjoinder of parties and of persons. the first charge is in respect of the conspiracy alleged to have been entered into by the two respondents k v ramana the approver and others known and unknown to commit criminal breach of trust of the funds of vesco and in order to screen its detection to falsify the accounts of vesco and to use forged documents as genuine. on the face of it this is a valid charge. but certain objections have been taken to it with which we will deal at the appropriate place. the second charge is for an offence of criminal breach of trust punishable under section 409 and the accusation therein is that the two respondents along with ramana misappropriated 69 items aggregating to a little over rs 3 20 000. it is clear from the charge that some of the amounts were misappropriated between april 1947 and march 1950 some between april 1947 and march 1949 some between april 1947 and march 1951 and quite a large number between september 1947 and march 1950 and a still large number between april 1951 and march 1952. it is thus apparent that offences committed within a space of 12 months were tried along with offences committed beyond that period. unless therefore the provisions of section 239 are applicable it would follow that there was a misjoinder of charges. the third charge is that the two respondents along with the approver. ramana made false entries on seven different dates in the account books between september 19 1947 and march 18 1952 and thus committed an offence under section 477 a i p c the fourth charge is that the two respondents along with the approver. ramana forged six documents on different dates between march 28 1949 and november 12 1951 and thus committed an offence under section 471 read with section 467 i p c as we have pointed out earlier the respondent No i alone was convicted by the additional sessions judge in respect of the third and fourth charges. mr bhimasankaram supports the reason given by the high court for coming to the conclusion that there was a misjoinder of charges. the main reasons upon which the conclusion of the high court is based are firstly that there could be no clubbing together of the provisions of the various clauses of section 239 and secondly that the respondents were charged with more than three offences of the same kind and that this was in contravention of section 239 c. in coming to the conclusion that the provisions of various clauses of section 239 can not be applied cumulatively the high court has relied upon the decision in re vankavalapati gopala rao 1956 airandhra 21. there the learned judges have held thus these clauses are mutually exclusive and they can not be simultaneously applied and to construe them as supplementing each other would be enlarging the scope of the exceptions. each clause is an exception to the general rule enacted in section 233 cr. if such a combination is permissible all persons accused of offences described in cls. a to g can be tried together in one case which certainly involves a bewildering multiplicity of charges and which would obviously set at naught the salutary principle contained in section 233. the chapter is split up into two sub heads form of chargesand joinder of charges. 221 to 232 are comprised under the first sub head and sections 233 to 240 in the second. 221 to 223 deal with the framing and content of charge. section 224 deals with the interpretation of the language of the charge and section 225 with the effect of errors in the charge. 226 to 231 deal with the power of the court with regard to framing and altering charges and the procedure to be adopted at the trial where a charge is found to be defective or there is no charge or where a new charge is to be framed. section 232 deals with the power of the appellate court or the high court when it discovers that there is material error in the charge. then we come to the other sub head of this chapter. section 233 provides that for every distinct offence of which any person is accused there shall be a separate charge. it thus lays down the normal rule to be followed in every case. but it also provides that this will be subject to the exceptions contained in sections. 234 235 236 and 239. the first three provisions relate to the framing of charges against a single accused person. section 234. 1 deals with the trial of a person for offences of the same kind not exceeding three committed within the space of 12 months from the first to the last of such offences and section 231 2 what is meant by the expression offences of the same kind. this provision lifts partially the ban on the trial of a person for more than one offence at the same trial. section 2351 however goes a step further and permits the trial of a person for more offences than one if they are so connected together as to form the same transaction. thus under this provision if the connection between the various offences is established the limitations placed by section 2341 both as regards the number and the period during which the offences are alleged to have been committed will not apply. full effect can not possibly be given to this provision if we hold that it is subject to the limitation of s 2341. sub s 2 of section 235 deals with a case where an offence falls within two definitions and sub s 3 deals with a case in which a number of acts are alleged against an accused person different com binations of which may constitute different offences. then we come to section 236 which provides that if a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and further provides that any number of such charges may be tried together. it also permits that charges could be framed against an accused person in the alternative if the court thinks fit. thus this is a special provision available in case of doubt and is neither subject to the limitations prescribed by section 233 nor those of the other preceding provisions. now if the respondent No 1 were alone tried upon the second third and the fourth charges the provisions of section 2351 could have been pressed in aid if the allegations were that the offences were so connected together as to form one and the same transaction and the validity of the trial would not have been open to any attack. similarly if the second respondent were alone tried on the second charge his trial would not have been open to any objection if the allegation were that the offences were so connected together as to form the same transaction. here however we have a case where the prosecution alleges that there was additionally a conspiracy to which apart from the two respondents the approver and some other persons were parties and where in both the respondents were tried together. a conspiracy must be regarded as one transaction and there fore a single individual charged with it could be tried with the aid of section 2351 for all the acts committed by him in furtherance or in pursuance of the conspiracy without the limitations imposed by s 2341. for where all the acts are referable to the same conspiracy their connection with one another is obvious. the only provision in the code which permits the joint trial of more than one person is section 239 and what we have to see is whether under that provision the two respondents could have been jointly tried for the offences with which they were charged. let us therefore examine closely the provisions of section 239. it will be useful to set out the provisions of that section which run thus this first thing to be noticed is that section 239 does not read as if its various clauses can be applied only alternatively. on the other hand at the end of cl. f there is a conjunction and. if the intention of the legislature was that the provisions of these clauses should be available only alternatively it would have used the word or and not and which has the opposite effect. grammatically therefore it would appear that the provisions of the various clauses are capable of being applied cumulatively. the opening words of the section show that it is an enabling provision and therefore the court has a discretion to avail itself cumulatively of two or more clauses. of course a court has the power to depart from the grammatical construction if it finds that strict adherence to the grammatical construction will defeat the object the legislature had in view. the concluding portion of section 239 shows that the provisions contained in the former part of chapter xix shall as far as may be apply to the charges framed with the aid of section 239. does this mean that the provisions of section 233 234 235 and 236 must also be complied with. obviously section 233 does not override the provisions of section 239. section 234 can not also be regarded as an overriding provision because reading it that way will lead to the clear result that whereas several accused persons can be charged at the same trial with any number of different offences committed by them in the course of the same transaction they can not be tried also for offences of the same kind exceeding three in number and committed beyond a space of 12 months from the first to the last. it could not have been the intention of the legislature to create such a situation. again as already stated section 2341 does not override the provisions of section 2351 which permits trial of a person for more offences than one committed during any period provided they are so connected together as to form one transaction. unless we read section 2341 as not enacting a fetter on section 2351 it may not be possible to give full effect to the latter. now since section 2341 can not be properly read a overriding section 2351 there is no valid reason for construing it as overriding the provisions of section 239 either. there are also other reasons which point to this conclusion which we will set out while considering the argument advanced by mr bhimasankaram. bhimasankaram contended that s 239 must be read at least subject to sections 2341 and 2351 on the ground. that if there are certain restrictions with respect to the trial of a single accused there is no reason why those restrictions will disappear if an accused person is tried along with several other persons. thus he points out that where several persons are accused of more offences than one of the same kind committed by them jointly within a period of 12 months the number of offences for which they could be tried can not exceed three. in this connection he relied upon the words within the meaning of section 224 occurring in cl. c of section 239. these words he contended clearly show that cl. c of section 239 is subject to the provisions of section 234. in our opinion the words within the meaning of section 234 indicate that what was meant by the words offence of the same kind persons accused of more offences than one of the same kind not exceeding three in numberor may have used the words person accused of more than one offence of the same kind to the extent permissible under section 234. therefore even if the expression same transaction alone had been used in section 2351 it would have meant a transaction consisting either of a single act or of a series of connec ted acts. the expression same transaction occurring in cls. a c and d of section 239 as well as that occurring in section 2351 ought to be given the same meaning according to the normal rule of construction of statutes. looking at the matter in that way it is pointless to inquire further whether the provisions of section 239 are subject to those of section 2361. the provisions of sub s 2 and 3 of section 235 are enabling provisions and quite plainly can have no overriding effect. but it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under section 239 s 236. is also an enabling provision to be availed of in case of doubt and it is meaningless to say that section 239 is subject to section 236. bearing in mind the fact that the provisions in the former part of chapter xix are applicable to charges made with the aid of section 239 only so far as may be it would not be right to construe section 239 as being subject to the provisions of sections 233 to 236. it was contended by mr chari that the expression former part would apply to the first sub division of chapter xix which deals with the form and content of the charges and the powers of the court with regard to the absence of charge and alteration of charge. we can not however give the expression such a restricted meaning. for even in the absence of those words the earlier provisions could not have been ignored. for it is a rule of construction that all the provisions of a statute are to be read together and given effect to and that it is therefore the duty of the court to construe a statute harmoniously. thus while it is clear that the sections preceding section 239 have no overriding effect on that section the courts are not to ignore them but apply such of them as can be applied without detracting from the provisions of s 239. indeed the very expression so far as may be empha sises the fact that while the earlier provisions have to be borne in mind by the court while applying section 239 it is not those provisions but the latter which is to have an overriding effect. apart from this the question whether the provisions of sections 233 to 236 have or have no overriding effect on section 239. is not strictly germane to the question considered by the high court that is clubbing together all the provisions of the various clauses of section 239. whether they can or can not be read cumulatively must be determined by consideration of the language used in those clauses. we have already indicated how those clauses may be grammatically read. on a plain construction of the provisions of section 239 therefore it is open to the court to avail itself cumulatively of the provisions of the different clauses of section 239 for the purpose of framing charges and charges so framed by it will not be in violation of the law the provisions of sections 233 234 and 235 notwithstanding. the decision of the allahabad high court in t r mukherji 's case il is directly in point and is clearly to the effect that the different clauses of section 239 are mutually exclusive in the sense that it is not possible to combine the provisions of two or more clauses in any one case and to try jointly several persons partly by applying the provisions of one clause and partly by applying those of another or other clauses. a large number of decisions of the different high courts and one of the privy council have been considered in this case. no doubt as has been rightly pointed out in this case separate trial is the normal rule and joint trial is an exception. but while this principle is easy to appreciate and follow where one person alone is the accused and the interaction or intervention of the acts of more persons than one does not come in it would where the same act is committed by several persons be not only inconvenient but injudicious to try all the several persons separately. this would lead to unnecessary multiplicity of trials involving avoidable inconvenience to the witnesses and avoidable expenditure of public time and money. no corresponding advantage can be gained by the accused persons by following the procedure of separate trials. where however several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. but here again if those offences are alleged not to be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves. we entirely agree with the high court that joint trial should be founded on some principle. but we find it difficult to appreciate what seems to be the view of the high court that because each clause of section 239 enunciates a separate principle those principles are so to speak mutually exclusive and can not be cumulatively resorted to for trying several persons jointly in respect of several offences even though they form part of the same transaction. the high court has propounded that the connection described in each of the various clauses is mutually exclusive that no two of them can exist simulta neously in any case and that one can not therefore have in any case persons connected with one another in two or more ways. in other words as the high court puts it persons included in two or more of the groups can not all be tried together and that since there is absolutely nothing to connect one group with any other the persons of one group can not be tried with those of any other. no reason has been stated in support of this view. let us consider whether there is anything intrinsically incompatible in combining two clauses of section 239. take cls. a and b. a says that persons accused of the same offence committed in the course of the same transaction may be charged and tried together. b says that persons accused of an offence and persons accused of abetment or of an attempt to commit such offence may also be charged and tried together. now if persons a b and c are tried for an offence of murder what intrinsic difficulty would there be in trying x y and z of abetment of the same offence. the transaction in which all of them have participated is the same and the abetment by x y and z of the offence committed by a b and c would itself establish the connection of their acts with those of x y and z next let us take cls. a and c c provides that persons accused of more than one offence of the same kind within the meaning of section 234 committed by them jointly within the period of twelve months could also be charged and tried together. let us consider these clauses along with another illustration. two persons a and b enter a house at night and first together commit the murder of a man sleeping there and then also his wife. each of them has committed two offences and each of them participated in the same offence. why can they not be tried jointly for both murders and why should there be two trials for the two murders. the offences are of the same kind and must be deemed to have been committed in the course of the same transaction because of association and mutual connection. now supposing in the illustration given a killed the man and b killed his wife. under cl. c they could be tried together because the offences are of the same kind. it would be ridiculous to say that they can not be tried together for jointly committing the murder of the man and the wife because cl. a and c can not be combined. for without combining these two clauses their joint trial for the two offences in each of which both have participated would be impermissible. then take section a and d d persons accused of different offences committed in the course of the same transaction can be tried together. let us suppose that a group of persons are accused of having been members of an unlawful assembly the common object of which was to overawe by sheer force another group of persons and take forcible possession of a piece of land. some of the members of the unlawful assembly carried axes with them while some others carried lathis and attacked the other group. during the course of the attack one person from the second group was killed as a rest of blows with an axe inflicted by the aggressors a b and c two persons of the second group sustained grievous hurt as a result of lathi blows and one person sustained simple hurt. let us say that the grievous hurt was caused as a result of lathi blows given by x and y simple hurt was caused by lathi blows given by z here the offences committed were those under sections 147 302 325 and 323 i p c the offences being different and the persons commiting the offences being different they could not be tried jointly only with the help of cl. a of section 239. nor again could they be tried jointly only with the help of cl. d yet the transaction in which the offences were committed is the same and there is a close association amongst the persons who have committed the different offences. what intrinsic difficulty is there in trying them all together simultaneously availing of cls. a and d of section 239. these are enabling provisions which circumstance implies that the court may avail itself of one or more of these provisions unless doing so would amount to an infringement of any of the provisions of the code. all these persons can be jointly tried for offences under section 147 by recourse to cl. a so also a b and c could be jointly tried together for an offences under section 302. x and y can be charged not only with offences under sections 147 and 325 i p c but also under section 302 read with section 149. similarly z can be charged with offence 's under sections 147 323 and offences under section 302. read with section 149 and section 325. read with section 149. the same offence committed by all of them is that under section 147 and all of them can be tried jointly in respect of that offence under cl. similarly if we take cl. d by itself all of them can be tried jointly for the different offences committed by each of them in the course of the same transaction and if cl. a is unavailable they could not be tried for the offence under section 147 at the same trial. this means that the trial for an offence under section 147 will have to be separated from the trial for the different offences committed by them. it is difficult to appreciate what purpose would be served by separating the trial for the same offence from the trial for different offences. to repeat the object of the legislature in enacting section 239 cr. p c clearly was to prevent multiplicity of trials and not only would that object be defeated but an extraordinary result will ensue if the various clauses of section 239 are read disjunctively. the reasons given by the allahabad high court therefore do not merit acceptance. the decision in singarachariar 's case 1934 indlaw mad 352 c has really no bearing upon the point before us. what was held there was that sections 235 1 and section 236 are mutually exclusive and if a case is covered by one of them it can not be covered by the other. in that case the question was whether a person who was first tried for an offence under section 380 i p c for stealing a blank second class railway ticket from the booking office tried for it and acquitted could not be tried subsequently for the offence of forgery by making entries in that ticket and using it. the acquittal in the previous case was urged as a bar under section 4031 of the code to the trial for an offence under section 467 i p c the contention apparently was that this was a case which fell under section 236 cr. p c and that if he had been tried alternatively for both the offences at the same trial the court could have dealt with him under section 237 cr. the high court however held that to be a kind of case which fell under section 2351 of the code and that since that was so the provisions of section 236 were excluded. it is difficult to appreciate how this case assists the conclusion arrived at by the high court. in d k chandra 's case 1951 indlaw mum 117 f b it was held that the provisions of sections 234 235 and 236. being exceptions to section 233 must be strictly construed and that if joinder of charges did not fall under any of them it would be illegal and contrary to law. the precise point which we have to consider here did not fall for consideration in that case i e whether the provisions of the various clauses of section 239 could be used together or not. this decision is therefore of little assistance. on the other band there is the decision of this court in the state of andhra pradesh v kandinmlla subbaiah which is to the effect that where several persons had committed offences in the course of the same transactions they could jointly be tried in respect of all those offences under section 239 of the code of criminal procedure and the limitation placed by section 234 of the code could not come into operation. there nine persons were jointly tried for an offence under section 5 1 c and d of the prevention of corruption act 1947 and section 109 i p c read with s 420 section 466 and section 467 i p c and all except one for offences under sections 420 467471 i p c some of them were also charged with separate offences under some of these provisions. two of the accused persons preferred a revision application before the high court of andhra pradesh in which they challenged the charges framed against them. the high court allowed the revision application. but on appeal by the state of andhra pradesh to this court this court held that there was no misjoinder of charges that the introduction of a large number of charges spread over a long period was a question of propriety and that it should be left to the judge or the magistrate trying the case to adopt the course which he thought to be appropriate in the facts and circumstances of the case. in so far as some of the charges were concerned this court pointed out that the special judge who was to try the case should consider splitting them up so that the accused persons would not be prejudiced in answering the charges and defending themselves. it is true that the question of reading the various clauses cumulatively did not specifically arise for decision in that case but the high court had held that the first charge was an omnibus charge containing as many as 203 offences and that it was in direct violation of sections 234 235 and 239 of the code of criminal procedure. dealing with this matter this court held at p 200 no doubt sub s 1 of section 234 provides that not more than three offences of the same kind committed by an accused person within the space of 12 months can be tried at the same trial. but then section 235 1 provides that if in any one series of acts so connected together as to form the same transaction more offences than one are committed by the same person he may be charged with and tried at one trial for every such offence. therefore where the alleged offences have been committed in the course of the same transaction the limitation placed by section 234 1 can not operate. no doubt the offence mentioned in charge No i is alleged to have been committed not by just one person but by all the accused and the question is whether all these persons can be jointly tried in respect of all these offences. to this kind of charges. 239 would apply. this section provides that the following persons may be charged and tried together namely 1 persons accused of the same offence committed in the course of the same transaction 2 persons accused of abetment or an attempt to commit such an offence 3 persons accused of different offences committed in the course of the same transaction. clearly therefore all the accused persons could be tried together in respect of all the offences now comprised in charge No 1. this court has thus clearly read the provisions of the various clauses cumulatively and we see no reason to read them differently. there remains the decision of this court in k v krishna murthy iyer v the state of madras in on which mr bhimasankaram strongly relied. in that case this court upheld the order of the high court of madras in quashing the charges in the exercise of its inherent powers even before the conclusion of the trial. it is true that there the charges were 67 in number and spread over a long period of time. that again was a matter which came before the high court before conviction and not after the trial was over. when an objection is taken at an early stage there is time enough to rectify an error. but in the case before us no objection was taken to multiplicity or misjoinder of charges before the learned additional sessions judge and it was only in the high court that the point was raised. in such circumstances what the court has to consider is whether prejudice has in fact been caused to the accused by reason of the multiplicity of charges or misjoinder if any of the charges. this is quite clear from the provisions of section 537 of the code as amended by act 26 of 1955. in willie william slaney v the state of madhya pradesh all the learned judges were in agreement on the point that this section and section 535 cover every case in which there is departure from the rules set out in ch. xix ranging from error omissions and irregularities in charges that are framed down to charges that might have been framed and were not and include a total omission to frame a charge at all at any stage of the trial. the whole question has again been examined by this court recently in birichh bhuian v the state of bihar subba rao j who delivered the judgment of the court has stated the position thus even if we were to assume that there has been a misjoinder of charges in violation of the provisions of sections 233 to 239 of the code the high court was incompetent to set aside the conviction of the respondents without coming to the definite conclusion that misjoinder had occasioned failure of justice. this decision completely meets the argument based upon dawson 's case. merely because the accused persons are charged with a large number of offences and convicted at the trial the conviction can not be set aside by the appellate court unless it in fact came to the conclusion that the accused persons were embarrassed in their defence with the result that there was a failure of injustice. for all these reasons we can not accept the argument of learned counsel on the ground of misjoinder of charges and multiplicity of charges. bhimasankaram supporting the view taken by the high court then contends that it is not permissible to frame a charge of conspiracy when the matter has proceeded beyond the stage of conspiracy and that in pursuance of it offences have actually been committed. a similar view was expressed by the same high court in the case which was reversed by this court in the state of andhra pradesh v kandinalla subbaiah 1962 2 scr 194 and it was held that conspiracy to commit an offence being itself an offence a person can be separately charged with respect to such a conspiracy. then this court has observed. this decision is sufficient to dispose of the point under consideration. in swamirathnam 's case 1 which is a decision of this court certain persons were tried for the offence of the conspiracy to cheat the members of the public and for specific offences of cheating in pursuance of that conspiracy. it was urged before this court that there was misjoinder of charges and persons. negativing the contention. this court held that the charge as framed disclosed a single conspiracy although spread over several years that there was one object of the conspiracy and that was to cheat the members of the public that the fact that in the course of years other joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not have the effect of splitting the conspiracy into several conspiracies. that the several instances of cheating being alleged to be in pursuance of that conspiracy were parts of the same transaction and therefore the joint trial of the accused persons for the different offences was not vitiated. no doubt there is no discussion there as to the question whether the various clauses of section 239 could be combined or as to the impact of the provisions of section 233 to 236 on those of section 239. the actual decision of the case is however directly opposed to the contention now put forward before us. this decision has been followed in natwarlal sakarlal. mody v the state of bombay. a No iii of 1959 decided on january 19 1961. in that case the impact of section 120 b i p c on sections 233 and 239 of the code of criminal procedure was considered by this court and this court observed. here again the question of clubbing together of the various provisions of cls. a to d of section 239 was not raised expressly in the argument before the court. but the ultimate decision of the case would negative such argument. mr bhimasankaram then relying upon the decision in r v dawson 1960 2 w l r 435 contended that in any event it was not desirable to try the respondents at the same trial for as many as 83 offences and pointed out that these observations had received the approval of this court in the state of andhra pradesh v kandimalla subbaiah 1962 2 b c r 194. in the first place there the trial had not actually begun. again what was said by this court was that it is undesirable to complicate a trial by introducing a large number of charges spread over a long period but even so this was a question of propriety which should be left to the discretion of the judge or magistrate trying the case. objection was taken very seriously by mr bhimasankaram to the charge of conspiracy framed in this case. that charge reads thus adverting to the portion which we have bracketed his first objection was that the charge comprises within it not merely the conspiracy but also what was in fact done in pursuance of the conspiracy. his next objection was that it brought within its purview all the various offences which were alleged to have been committed by the respondents. the third objection was that no charge of conspiracy could have been framed after the conspiracy had borne its fruits. the last objection was that the charge of conspiracy was added to the charge sheet very late. we shall first deal with the third point. the offence of conspiracy is an entirely independent offence and though other offences are committed in pursuance of the conspiracy the liability of the conspirators for the conspiracy itself can not disappear. in the indian penal code as originally enacted conspiracy was not an offence. section 120 b which makes criminal conspiracy punishable was added by the indian criminal law amendment act 1913 8 of 1913 along with section 120 a section 120 a defines conspiracy and section 120 b provides for the punishment for the offence of conspiracy. criminal conspiracy as defined in section 120 a and consists of an agreement to do an illegal act or an agreement to do an act which is not illegal by illegal means. section 120 b provides that whoever is a party to a criminal conspiracy to commit an offence punishable with death imprisonment for life or rigorous imprisonment for a term of two years or upwards shall be punishable in the same manner as if he has abetted such offence unless there was an express provision in the code for the punishment of such conspiracy. criminal conspiracy was however not an unknown thing before the amendment of the indian penal code in 1913. but what the amendment did was to make that conspiracy itself punishable. the idea was to prevent the commission of crimes by so to speak nipping them in the bud. but it does not follow that where crimes have been committed the liability to punishment already incurred under section 120 b by having entered into a criminal conspiracy is thereby wiped away. no doubt as already stated where offences for committing which a conspiracy was entered into have actually been committed it may not in the particular circumstances of a case be desirable to charge the offender both with the conspiracy and the offences committed in pursuance of that conspiracy. but that would be a matter ultimately within the discretion of the court before which the trial takes place. in so far as the fourth point is concerned that would have a bearing not on the form of the charge but on the credibility of the evidence bearing on the point of conspiracy. as we are remanding the appeal to the high court for a fresh decision after full consideration of the evidence adduced in the case it would be open to it to consider this matter particularly while judging the credibility of the evidence of the approver. in so far as the portion included in the bracket is concerned we agree with the learned counsel that it should not have found place there. the ideas however of the committing magistrate in stating all that is said there appears to have been merely to describe the conspiracy and do nothing more. we do not think that either that or the other objection raised that is that the charge embraces within it all the offences said to have been committed by the respondents can properly. be said to vitiate the charge. the object in saying what has been set out in the first charge was only to give notice to the respondents as to the ambit of the conspiracy to which they will have to answer and nothing more. even assuming for a moment that this charge is cumbersome in the absence of any objection by the respondents at the proper time and in the absence of any material from which we could infer prejudice they are precluded by the provisions of section 225 from complaining about it at any rate after their conviction by the trial court. coming to the next point of mr bhimsankaram regarding the abuse of powers under section 342 his first contention was that long and involved questions were put to the respondents. his second contention was that reference was made to a number of documents in some of these questions and those documents were not made available to the respondents for answering those questions. the third contention was that the questions were involved confusing and bordered on cross examination. finally he said that the court did not perform its duty under section 342 4 of the code as amended as it failed to bring to the notice of the respondents that they may if they chose give evidence in their defence. in support of his first contention he referred to questions nos 4 8 9 10 and 20 put to the respondent No i and question No 12 put to the respondent No 2 and tried to show that those questions rolled up a large number of separate questions and that it could not have been possible for the respondents to give any rational answers to those questions. we have read the questions and so also the answers. while we are disposed to agree with learned counsel that the questions embrace a number of matters and that it would have been better if those matters had been made the subjects of separate questions the answers given by the respondents clearly show that they understood the questions and wherever possible they have given complete answers to those questions. that is to say they have given their explantion regarding the circumstances appearing in the evidence set out in the questions and wherever that was not feasible they have said that they would do so in their written statements. in fact written statements have been filed by each of them in which every point left over has been fully answered. we are informed that the questions had been prepared before hand by the learned additional sessions judge copies thereof were made available to each of the respondents and it was with reference to those copies that they gave their answers in the court. a pointed reference was made to question. No 20 put to respondent. No i which contains as many as 22 sub heads and it is said that it was an extremely unfair and embarrassing question. what the learned additional sessions judge has done is to err on the side of over cautiousness by putting every circumstance appearing in the evidence to the respondents for eliciting their explanations. his object was to obviate the possibility of a complaint before the appellate court that they were denied the opportunity of explaining the circumstances appearing in evidence against them because of defective questions. nor again do we think that there is any substance in the complaint made that the respondents had no opportunity of referring to the documents to which reference has been made in certain questions. no objection was taken on their behalf before the learned additional sessions judge and from the manner in which they have answered the questions there is no doubt that they must have had opportunity to look at the relevant documents and answer the questions. we are also satisfied that there is no substance in the complaint that the questioning bordered on cross examination. undoubtedly the learned additional sessions judge has questioned the respondents very fully and elaborately but to say that this bordered on cross examination is wholly unjustifiable. the object of the learned additional sessions judge quite clearly was as already stated to leave no loophole for a complaint to be made before the appellate court of incomplete or insufficient examination under section 342 finally we are clear that it was not the duty of the court to draw the pointed attention of the respondents to the provisions of sub s 4 of section 342 and tell them that they may if they chose enter the witness box. it is true that by introducing this provision the disability placed on an accused person in respect of giving evidence on oath in his own defence has been removed and to that extent such person is placed on par with an accused person under the english law. the new provision however does no more than lift the ban and does not impose a duty on the court to draw the attention of an accused person to its contents. apart from that the respondents were represented by counsel at the trial who knew very well what the law was. no complaint was made by the respondents even in appeal that they were ignorant of their right that had they known about it they would have given evidence on oath in their defence and that because of this they have been prejudiced. in the circumstances this point must also be rejected as being without substance. the irrelevant evidence to which mr bhimasankaram referred was certain account books. the entries in the account books of vesco show that certain sums of money were paid to various parties crompton engineering co lumin electric co d brothers radio and electrical madras vizagapatam municipality p v ramanayya bros and andhra power system. they also show payment case was that the payments which were entered in the account of vesco do not find a place in the account books of the corresponding firms or authorities because they were never made by vesco. the high court has pointed out that the main evidence on which the prosecution rests its case that the amount represented by the entries against these various firms were in. fact misappropriated by the respondents in the circumstance that there are no corresponding entries in the account books of those firms. the argument before the high court was and before us is that the absence of an entry can not of electricity duty to government. the prosecution be established by reference to section 34 of the indian evidence act which reads thus. what it does is to make entries in books of account regularly kept in the course of business relevant in all proceedings in a court of law. these entries are however not by themselves sufficient to charge any person with liability. therefore when a sues b for a sum of money it is open to him to put his account books in evidence provided they are regularly kept in the course of business and show by reference to them that the amount claimed by him is debited against b the entry though made by a in his own account books and though it is in his own favour is a piece of evidence which the court may take into consideration for the purpose of determining whether the amount referred to therein was in fact paid by a to b the entry by itself is of no help to a in his claim against b but it can be considered by the court along with the evidence of a for drawing the conclusion that the amount was paid by a to b to this limited extent entries in the account books are relevant and can be proved. section 34 does not go beyond that. it says nothing about non existence of entries in account books. we therefore agree with the high court that the account books of the various concerns to whom payments are said to have been made by the respondents are not by themselves evidence of the fact that no payments were received by them. the decision in queen empress v grees chunder banerjee 1884 i l r 10. cal 1024 upon which reliance is placed by the high court in support of its view is also to that effect. similarly in ram prashad singh v lakhpati koer 1902 i l r 30. cal 231 247. lord robertson during the course of the hearing has observed that no inference can be drawn from the absence of any entry relating to any particular matter which observation supports the view taken in queen empress v girish chander banerjee 1884 i l r 10 c l 1024. that however is not the only provision to be considered. there is section ii of the evidence act which provides that facts not otherwise relevant are relevant if they are inconsistent with any fact in issue or relevant fact. some of the facts in issue in this case are whether payments of certain sums of money were made to crompton engineering co and other firms or authorities. these are relevant facts. absence of entries in their account books would be inconsistent with the receipt of the accounts and would thus be a relevant fact which can be proved under section 11. the fact that no payments were received by those firms has been deposed to by persons connected with those firms and whose duty it was to receive and acknowledge amounts received by the firms or who were in charge of the accounts of these firms. for the purpose of showing that no amounts were received by the firms their account books would thus be as relevant as the vesco account books for the purpose of showing the contrary. similarly there is section 5 of the evidence act which reads thus it is the case of the prosecution that the alleged payments were never made by vesco to the various firms. it is also their case that these firms maintain their accounts in the regular course of business and it is their practice to enter in those accounts all payments received by them. both the sets of facts are relevant that is non receipt of the amounts by the firms and non existence of entries in their account books pertaining to those amounts. it is permissible therefore for the prosecution to lead evidence to drove both these facts. the best evidence to prove the latter set of facts consists of the account books of the firms themselves. it is under these provisions that the account books of the firms must be held to be relevant. what value to attach to them is another matter and would be for the court of fact to consider. it may further be mentioned that the account books of vesco show certain payments made to billimoria co of kharagpur. papers seized by the police include receipts purporting to have been signed by one j j billimoria on behalf of the firm. the prosecution case is that these receipts are forged documents and the entries in the account books of vesco are false. one of the partners of the firm was examined by the prosecution as a witness in the case and he produced the account books of the firm. those account books are in gujrati and he stated in his evidence that the accounts were regularly kept and that there were no entries in them corresponding to the entries in the vesco accounts. the high court held that since the account books were not translated they are not admissible in evidence. the high court was clearly wrong in so holding. in coming to this conclusion it has relied upon the provisions of section 356 2a of the code of criminal procedure. that section reads thus this provision relates only to the oral evidence adduced in a case and not to documentary evidence. mr bhimasankaram therefore very rightly did not support the view of the high court. in the circumstances we wish to say nothing further on the point. we may however point out that billimoria himself gave his evidence in english. another point urged by mr bhimasankaram was that as many as 2 000 documents were dumped by the prosecution in this case out of which 1600 documents were not sought to be proved by it. further 64 documents were missing from the records when they came to the high court and that this has caused serious prejudice to the respondent. no objection however was taken in the courts below on this score and in the absence of any prejudice to the respondents. we do not think that we should take notice of the complaint made by mr bhimasankaram. the third point stressed by him was that the approver was allowed to refresh his memory while deposing in the case by referring extensively to the account books and various documents produced in the case. this according to him was an absue of the provisions of section 159 of the evidence act. now section 159 expressly enables a witness while under examination to refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is being questioned or soon afterwards or to a writing made similarly by another person and read by the witness immediately or soon after the writing was made. section 160 provides that a witness may also testify to the facts mentioned in any such document as is mentioned in section 159. the complaint of mr bhimasankaram is that the approver should have been questioned about the various facts which were sought to be established through his evidence and it was only if and when he was in a difficulty that he should have been allowed to refer to the account books. instead of doing that what he was permitted to do was just to prove the various documents or read those documents and then depose with reference to them. in our opinion where a witness has to depose to a large number of transactions and those transactions referred to are or mentioned either in the account books or in other documents there is nothing wrong in allowing the witness to refer to the account books and the documents while answering the questions put to him in his examination. he can not be expected to remember every transaction in all its details and section 160 specifically permits a witness to testify the facts mentioned in the documents referred to in section 159 although he has no recollection of the facts themselves if he is sure that the facts were correctly recorded in the document. that is precisely what happened in this case and we do not think that the additional sessions judge adopted a procedure which was either a violation of law or was an abuse of the power of the court. the next point is a formidable one. according to mr bhimasankaram the pardon tendered to the approver was illegal and if the pardon is illegal his evidence is wholly inadmissible. further according to him the evidence of the approver was found by the additional sessions judge to be unreliable and therefore the first condition referred to in sarwan singh v the state of punjab was not satisfied. for all these reasons the evidence of the approver must be left out of account. if it is left out of account he contends there is nothing left in the prose cution case because as pointed out by the additional sessions judge himself the evidence of the approver is the pivot of the prosecution case. the pardon is stated to be illegal for two reasons. the first reason is that none of the offences alleged to have been committed falls within section 337 of the code of criminal procedure and the second reason is that the pardon was granted by an authority not empowered to grant it. section 337 1 as it stood before its amendment by act 26 of 1955 read thus. his contention is that where none of the offences is exclusively triable by the high court or the court of sessions pardon could be granted only if the offences are punishable with imprisonment which could extend to ten years but not if a higher punishment were provided for them. here one of the offences alleged against the respondents is criminal breach of trust punishable under section 409 i p c it is not exclusively triable by a court of sessions and the punishment as set out in the 7th column of schedule ii cr. p c was transportation for life or imprisonment of either description for ten years and fine. he contends that since the offence is punishable with transportation for life section 337 1 could not be availed of for granting pardon to the approver. it seems to us that it would not be correct to read section 337 1 in the way sought by learned counsel. the very object of this provision is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons so that with the aid of the evidence of the person pardoned the offence could be brought home to the rest. the gravity is of course to be determined with reference to the sentence awardable with respect to that offence. on the strength of these considerations mr chari for the state contends that if the words any offence punishable with imprisonment which may extend to 10 years were interpreted to mean offences which were punishable with imprinsonment of less than 10 years grave offences which are not exclusively triable by a court of sessions will be completely out of section 337 1. he suggests that this provision can also be reasonably interpreted to mean that where the offences are punishable with imprisonment exceeding 10 years pardon may be granted to the approver. no doubt if this interpretation is accepted the object of the section that is to embrace within it the graver offences would be fulfilled but we wish to express no opinion on it. for the pardon granted in this case can be regarded as being within the ambit of section 337 1 for another reason. it will be noticed that transportation for life was not the only punishment provided for an offence under section 409 of the indian penal code even before the amendment made to the indian penal code by section 117 of the act 26 of 1955 the other alternative being imprisonment up to 10 years. therefore since the offence under section 409 was not merely punishable with transportation for life but alternately also punishable with imprisonment which could extend to 10 years section 337 1 would apply. this section does not expressly say that the only punishment provided for the offence should be imprisonment not exceeding 10 years. the reason why two alternative maximum sentences are given in col 7 that is transportation for life now imprisonment for life and imprisonment not exceeding 10 years appears to be that the offence is not exclusively triable by a court of session and could also be tried by a magistrate who except when empowered under section 30 would be incompetent to try offences punishable with transportation for life now imprisonment for life and the further reason that it should be open to the court of session instead of awarding the sentence of transportation for life to a convicted person to award him imprisonment in a jail in india itself for a period not execeeding 10 years. now of course by the amendment made by section 117 of act 26 of 1955 for the words transportation for life the words imprisonment for life have been substituted but the original structure of all the sections now amended continues. that is why they read rather queer but even so they serve the purpose of allowing certain offences triable by a court of session to be triable also by magistrates of the first class. be that as it may there is no substance in the first ground. what we have said about pardon in respect of an offence under section 409 would apply equally to that for one under section 120 b because the punishment for it is the same as that for the offence under section 409. the offence under section 467 read with section 471 is punishable with imprisonment for life or imprisonment of either description for a period of 10 years but it is exclusively triable by a court of session and therefore in so far as such offence is concerned the argument of mr bhimasankaram would not even have been available. as regards the offence under section 477 a it is one of those sections which are specifically enumerated in section 337 1 and the argument advanced before us and which we have rejected would not even be available with regard to the pardon in respect of that offence. it is true that the respondent No i alone was convicted by the additional sessions judge of this offence and the offence under section 467 read with section 471 but the validity of a pardon is to be determined with reference to the offence alleged against the approver alone and not with reference to the offence or offences for which his associates were ultimately convicted. coming to the next ground of attack on the validity of pardon the argument of mr bhimasankaram is that whereas section 337 1 speaks of pardon being granted by a district magistrate or presidency magistrate a sub divisional magistrate or any magistrate of first class except in cases where an enquiry or trial was pending before another magis tratc the pardon here was granted by the additional district magistrate in a case where an enquiry was pending before the district magistrate and is therefore illegal and of no avail. he contends that section 337 1 speaks of the district magistrate which expression does not include an additional district magistrate. mr bhimasankaram 's argument on the point may be summarised thus such a power can not be conferred upon an additional district magistrate because section 337 1 does not contemplate grant of pardon by an additional district magistrate and that the additional district magistrate would have no status other than that of a magistrate first class. no doubt under entry 9 a in part iii of sch. iii to the code a magistrate first class has the power to grant pardon under section 337 but it is limited by the proviso thereto to certain classes of cases. a case under enquiry or trial before another magistrate does not fall in any of these classes. therefore a pardon granted by him in such a case would be illegal. the magistrate before whom the enquiry or trial is proceeding or the district magistrate would be the only authorities competent to grant a pardon in such a case. alternatively the state government has not made any directions under sub s 2 of section 10 specifying the powers of the district magistrate which would lie exercisable by the additional district magistrate concerned. in order to appreciate and consider the argument it is desirable to bear in mind the changes in the magisterial set up in the former province of madras which comprised within it the district of visakhapatnam. by government order No 3106 dated september 9 1949 the government of the province of madras issued certain instructions to the magistrates in pursuance of the separation of the judiciary from the executive. it divided the magistrates into two groups judicial magistrates and executive magistrates. the latter category comprises of the executive officers of the revenue department on whom the responsibility for the maintenance of law and order was to continue to rest. para 4 of the instructions provides. para 5 provides that as officers of the revenue department those magistrates would be under the control of the government through the board of revenue. the additional district magistrates independent would also be under the control of the government through the board of revenue. the category of judicial magistrates was constituted of the following 1 district magistrate 2 sub divisional magistrates 3 additional first class magistrates and 4 second class magistrates sub magistrates. the district magistrate was constituted as the principal magistrate of the district and as such was entrusted with the duty of general administration and superintendence and control over the other judicial magis trates in the district. in addition to his general supervisory functions and the special powers under the code of hearing revision petitions transfer petitions appeals from second class magistrates and the like the district magistrate was also to be assigned a specific area the cases arising from which would be disposed of normally by himself. this body of magistrates was made subordinate to the high court. till the separation between the judiciary and the executive was effected the collector as the head of the revenue department was also the district magistrate. consequent on the separation. he became only an additional district magistrate. part iv of the government order deals with the allocation of powers between the judicial and executive magistrates. para 193 occurring in this part deals with allocation of powers under the provisions of the code otherwise than these referred to in the earlier paragraphs. it specifically provides that the power to tender pardon udder section 337 shall be exercised by executive magistrates except in cases referred to in the proviso to sub s 1 of that section in which case a judicial magistrate may exercise that power. in spite of the government order all magistrates who have under sch. iii to the code of criminal procedure the power to grant pardon will continue to have that power and therefore a pardon granted by a judicial magistrate in contravention of the government order will not be rendered invalid. however that is not the point which is relevant while considering the argument of mr bhimasankaram. his point is that the proviso to section 3371 confers the power on the district magistrate to grant pardon in a case pending before another magistrate and not on a district magistrate and therefore his power to grant pardon in such cases can not be conferred under sub s 2 of section 10 on an additional district magistrate. according to him under that section only the powers of a district magistrate meaning thereby only the powers under entry 7 a in part v of sch. as distinguished from the power under the proviso to section 337 1 can be conferred upon an additional district magistrate. secondly according to him no direction has in fact been shown to have been made by the state government conferring upon an additional district magistrate the power of the district magistrate to grant pardon. in our opinion there is no subtance in the contention. the power conferred by sub s 1 of section 337 on the different clauses of magistrates is of the same character. the power to grant pardon in a case pending before another magistrate is no doubt conferred by the proviso only on the district magistrate. but entry 7 a in part v of sch. iii when it refers to the power of a district magistrate under section 337 1 does not exclude the power under the proviso. there is therefore no warrant for drawing a distinction between the powers of the district magistrate and the powers of a district magistrate. the power of a district magistrate to grant pardon has been specifically conferred on additional district magistrates as would appear from section No 37 of sch. iii of the government order which reads thus. mr chari for the state advanced a further argument before us in case his main argument that the pardon was valid failed and said that the approver even if we ignore the pardon was a competent witness. in support of his contention he strongly relied upon the decision in kandaswamy gounder. in re the appellant i l r 1957 mad 715 and the cases referred to therein in particular the decision in winson v queen 1866 l r i q b what has been held in all these cases is that where the trial of a person who was charged with having committed an offence or offences jointly with several persons is separated from the trial of those persons he would be a competent witness against them though of course there will always be the question as to what weight should be attached to his evidence. mr chari then referred to section 133 of the evidence act and pointed out that this section clearly makes an accomplice evidence admissible in a case and that an approver whose pardon is found to be invalid does not cease to be an accomplice and contends that he is therefore as competent a witness as he would have been if he had not been granted pardon at all and not been put on trial. learned counsel further pointed out that the decisions show that however undesirable it may be to adduce the evidence of a person jointly accused of having committed an offence along with others his evidence is competent and admissible except when it is given in a case in which he is being actually tried. this legal position does not according to him offend the guarantee against testimonial compulsion and he points out that that is the reason why an accused person is not to be administered an oath when the court examines him under section 342 1 for enabling him to explain the circumstances appearing in evidence against him. if pardon is tendered to an accused person and eventually it is found that the pardon is illegal such person is pushed back into the rank of an accused person and being no more than an accomplice would be a competent witness. the question raised is an important one and requires a serious consideration. mr chari in support of his contention has cited a large number of cases indian as well as english and certain passages from halsbury 's laws of england. but in the view we take about the legal validity of the pardon tendered we do not wish to pronounce one way or the other on this very interesting question. now as regards the reliability of the approver. it is no doubt true that an approver has always been regarded as an infamous witness who on his own showing has participated in a crime or crimes and later to save his own skin turned against his former associates and agreed to give evidence against them in the hope that he will be pardoned for the offence committed by him. the high court seems to think that before reliance could be placed upon the evidence of the approver it must appear that he is a penitent witness. that in our opinion is not the correct legal position. the section itself shows that the motivating factor for an approver to turn what in england is called king 's evidence is the hope of pardon and not any noble sentiment like contrition at the evil in which he has participated. whether the evidence of the approver should in any given case be accepted or not will have to be determined by applying the usual tests such as the probability of the truth of what he has deposed to the circumstances in which he has come to give evidence whether he has made a full and complete disclosure whether his evidence is merely self exculpatory and so on and so forth. the court has in addition to ascertain whether his evidence has been corroborated sufficiently in material particulars. what is necessary to consider is whether applying all these tests we should act upon the evidence of the approver should be acted upon. we however find that certain documents upon which mr chari wants to rely are not included in the paper book. it would take considerable time if we were to adjourn this matter now and give an opportunity to the parties to include those documents on record. the better course would be for us to set aside the acquittal of the respondents and send back the appeal to the high court or being decided on merits. the high court will of course be bound by the finding which we have given on the questions of law agitated before us. what it must now do is to consider the entire evidence and decide for itself whether it is sufficient to bring home all or any of the offences to the respondents. we may mention that the high court 's observation that the approver 's evidence was treated as unreliable by the learned additional sessions judge is not correct. of course the view taken by the additional sessions judge is not binding on the high court. but it should remove from its mind the misconception that the additional sessions judge has not believed him. there is another thing which we would like to make clear. the decision in sarwan singh v the state of punjab 1957 b c r 953 on which reliance has been placed by the high court has been explained by this court in the case of maj e g barsay v the state of bombay. this court has pointed out in the latter decision that while it must be shown that the approver is a witness of truth the evidence adduced in a case can not be considered in compartments and that even for judging the credibility of the approver the evidence led to corroborate him in material particulars would be relevant for consideration. the high court should bear this in mind for deciding whether the evidence of the approver should be acted upon or not. then again it would not be sufficient for the high court to deal with the evidence in a general way. it would be necessary for it to consider for itself the evidence adduced by the prosecution on the specific charges and then to conclude whether those charges have been established or not. the prosecution would be well advised if instead of placing the evidence on each and every one of those large number of charges against the respondents it chooses to select a few charges under each head other than the head of conspiracy and concentrates on establishing those charges this would save public time and also serve the purpose of the prosecution. with these observations we set aside the acquittal of the respondents and remit the appeal to the high court for decision on merits in the light of our observations. appeal allowed. case remanded.

section 24 of the orissa estates abolition act 1951 stipulates that the compensation shall be determined for the estate as a whole and not separately for each of the shares therein. section 26 has great relevance as it lays down the method of arriving at the gross asset and section 27 has like significance as it focuses on the manner in which the net income from an estate shall be computed by deducting certain items from the gross asset of the estate. section 28 states how the amount of compensation is to be determined and the methodology of payment. there are a few other s s in chapter vi which deal with payment of compensation. the act also provides for appeal second appeal and revision the last being to the high court and the earlier ones being to the collector and a board constituted under section 22. the rule making power is vested in the government under section 47 and there is a routine removal of difficulties clause contained in section 50. the policy of the law of agrarian reform postulates the extinguishment of ancient privileges and cornering of land resources and the socioeconomic yardstick is different from what applies to ordinary purchases of real estate and this is manifest in the special provisions contained in article 31a and article 31b of the constitution.

"this appeal is by special leave against the judgment of the high court of punjab and haryana confir(...TRUNCATED)

"s 21 of the maternity benefit act is applicable to every establishment being a factory mine or plan(...TRUNCATED)

"this appeal is by special leave against the judgment and decree of the high court of kerala which d(...TRUNCATED)

"s 2 of the bombay merged territories and areas jagirs abolition act1953 contains the definitions of(...TRUNCATED)

"three civil appeals stemming from three revision petitions to the high court of orissa under the or(...TRUNCATED)

"in making the application of 22nd december1978the union invoked the jurisdiction of the tribunal un(...TRUNCATED)

"this appeal by special leave which is directed against the judgment and order dated april 241974 of(...TRUNCATED)

"it must be remembered that article 39b of the essential commodities act enjoins a duty on the state(...TRUNCATED)

"the main question raised in this appeal by special leave at the instance of state of gujarat and th(...TRUNCATED)

"s 2r of the andhra pradesh act states that the expression protected means a person who is deemed to(...TRUNCATED)

"this appeal by special leave has been preferred by tata consultancy engineers against an award date(...TRUNCATED)

"the power of the high court to revise the order is contained in section 292 of the bombay rent act (...TRUNCATED)