PETITIONER:
CHHOTAN PRASAD SINGH & ORS.
Vs.
RESPONDENT:
HARI DUSADH & ORS.
DATE OF JUDGMENT24/11/1976
BENCH:
SHINGAL, P.N.
BHAGWATI, P.N.
GUPTA, A.C.
CITATION:
1977 AIR 407 1977 SCR (2) 174
1977 SCC (1) 102
ACT
Oaths Act 1873--Section 4---General Clauses Act 1897, sec.
3(3)--Meaning of affidavit--Criminal Procedure Code
1898--Section 145(1), whether affidavits before a Magistrate
in 145(1) proceedings must be sworn before any other author-
ity empowered to administer oath.
HEADNOTE
Proceedings under section 145(1) of the Criminal Proce-
dure Code 1898 were going on between the parties. The
appellants filed affidavits before the Magistrate. The said
affidavits were not sworn before the Magistrate who was in
seisin of the case but were sworn before some other Magis-
trate. It was contended before the Magistrate by the re-
spondents that the said affidavits were not admissible in
evidence. The High Court held those affidavits to be inad-
missible.
Dismissing the appeal by special leave,
HELD: (1) In the absence of any specific provision to
the contrary in the Criminal Procedure Code the affidavits
have to be sworn or affirmed in accordance with the provi-
sions of the Oaths Act, 1873. Section 145(1) of the Code
provides that the Magistrate making an order under it shall
require the parties concerned in the dispute to attend his
court in person or by pleader and to put in such documents
or to adduce by putting in affidavits the evidence of such
persons as they rely upon in support of their claim. The
affidavits contemplated by the sub-section are, therefore,
evidence for purposes of proceedings before the Magistrate
concerned even though the Evidence Act does not apply to
them. [175G-H]
(2) There is no provision in the Code specifying the
courts before whom the affidavits referred to in section 145
have to be sworn and affirmed. The definition of affidavit
in section 3(3) of.the General Clauses Act 1897 only states
that it shall include affirmation and declaration in the
case of persons by law allowed to affirm or declare instead
of swearing. Section 4 of the Oaths Act reads as under:
"4. The following Courts and persons are authorised to
administer by themselves or by an officer empowered by them
in this behalf, oaths and affirmations in discharge of the
duties or in exercise of the powers imposed or conferred
upon them respectively by law :--
(a) all Courts and persons having by law or consent of
parties authority to receive evidence;"
It is clear that all Courts and persons having by law or
consent of parties authority to receive evidence are autho-
rised to. administer oaths and affirmations, but they can do
so only where they are otherwise acting in the discharge of
the duties or in exercise of the powers imposed or conferred
upon them respectively by law. In the present case the
Magistrate concerned with the proceedings under s. 145 of
the Code was discharging the duties imposed and exercising
the powers conferred by the Code and he alone could adminis-
ter the oaths and affirmations to the persons who made
affidavits and not Magistrates who were not discharging any
such duty or exercising any such power. [176A-H]
Nandial Ghose v. Emperor AIR 1944 Cal. 283, Hemdan v.
State of Rajasthan & Ors., AIR 1966 Raj. 5; Govind v. State
and others AIR 1969 All. 405; Krishna Chandra Naik v. Sk.
Makbul and others AIR 1970 Orissa 309; Mahesh Thakur and
others v. Lakshman Prasad Thakur and another (1971) 19 Bihar
Law Journal 727 and State of Madhya Pradesh v. Trivedi
Prasad (1971) XVI H.R. Law journal 1059 approved.
175
Ahmad Din v. Abdul Salem AIR 1966 Pb. 528 and Shambhu
Nath Chopra v. State AIR 1970 Delhi 210, over-ruled.
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 316
of 1971.
(Appeal by Special Leave from the Judgment and Order
dated the 17th September, 1971 of the Patna High Court in
Criminal Revision No. 2488 of 1971) and
Criminal Appeal No. 317 of 1971.
(Appeal by Special Leave from the Judgment and Order
dated the 7th October, 1971 of the Patna High Court in
Criminal Revision No. 1491 of 1971.)
D. Goburdhan and D.P. Sharma for the appellants in both
the appeals.
S.C. Agrawala and V.J. Francis for respondents in both
the appeals.
The Judgment of the Court was delivered by
SHINGHAL, J.--The point for consideration in these
appeals by special leave is whether affidavits, sworn or
affirmed before magistrates who are not in seisin of the
case under section 145 of the Code of Criminal Procedure,
hereinafter referred to as the Code, could be read in evi-
dence under that section ? The High Court has held such
affidavits to be inadmissible in evidence, in its impugned
judgments dated September 17, 1971 and October 7, 1971, and
that is why the present appeals by special leave have arisen
at the instance of the aggrieved parties.
It is not in controversy that in the absence of any
specific provision to the contrary in the Code, the affida-
vits have to be Sworn or affirmed in accordance with the
provisions of the Oaths Act, 1873. It is also not in con-
troversy that the Oaths Act of 1969 has no application to
the controversy.
Sub-section (1) of section 145 of the Code provides,
inter alia, that the Magistrate making an order under it
shall require the parties concerned in the dispute to attend
his court in person or by pleader and to put in such docu-
ments, or to adduce, "by putting in affidavits, the evidence
of such persons" as they rely upon in support of their
claims. The affidavits contemplated by the sub-section are
therefore evidence for purposes of the proceedings before
the Magistrate concerned even though the Evidence Act does
not apply to them by virtue of the express provision of
section 1 of that Act.
Chapter XLVI of the Code deals with miscellaneous mat-
ters including the affidavits referred to in sections 539,
539-A and 539-AA. Section 539 deals with courts and persons
before whom affidavits and affirmations to be used before
any High Court or any officer of such Court may be sworn and
affirmed. Section 539-A relates to
176
affidavits in proof of conduct of public servants, while
section 539-AA relates to the authorities before whom affi-
davits to be used under section 510A or 539-A may be sworn
or affirmed. An affidavit under section 145 is not however
of a formal character because it is meant to prove or dis-
prove the competing claim of the parties as respects the
fact of actual possession of the subject or dispute. There
is thus no provision in the Code specifying the courts or
persons before whom the affidavits referred to in section
145 have to be sworn and affirmed. This has therefore to be
done according to the general provisions relating to
affidavits.
The definition of "affidavit" in section 3(3) of the
General Clauses Act (Act X of 1897) only states that it
shall include affirmation and declaration in the case of
persons by law allowed to affirm or declare instead of
swearing. But it is an essential characteristic of an
affidavit that it should be made on oath or affirmation
before a person having authority to administer the oath or
affirmation It is here that section 4 of the Oaths Act comes
into operation which provides as follows:--
"4. The following Courts and persons are authorised to
administer by themselves or by an officer empowered by them
in this behalf, oaths and affirmations in discharge of the
duties or in exercise of the powers imposed or conferred
upon them respectively by law :--
(a) all Courts and persons having by law or consent of
parties authority to receive evidence;"
Then follow clause (b) and a proviso, with which we are not
concerned.
It is therefore clear that all courts and persons having
by law or consent of parties authority to receive evidence
are authorised to administer oaths and affirmations, but
they can do so only where they are otherwise acting" in the
discharge of the duties or in exercise of the powers imposed
or conferred upon them respectively by law." So the court
or person mentioned in clause (a) of section 4 of the Oaths
Act can administer oath or affirmation to the deponent in an
affidavit only if the, court or person in acting in the
"discharge of the duties or in exercise of the powers im-
posed or conferred upon them respectively by law." In the
present cases, the Magistrates concerned with the proceeding
under section 145 of the Code were discharging the duties
imposed and exercising the powers conferred by the Code, and
they alone could administer the oaths and affirmations to
the persons who made the affidavits, and not the magistrates
who were not discharging any such duty or exercising any
such power. As the affidavits in the cases before us were
admittedly not sworn or affirmed before Magistrates who were
dealing with the disputes under section 145 of the Code,
they were not proper affidavits and did not constitute
evidence for purpose of section 145. A similar view
177
has been taken in Nandial Ghost v. Emperor(1), Hemdan v.
State Rajasthan and others(2), Govind v. State and oth-
ers(3), Krishna Chandra Naik v. Sk. Makbul and others(4)
Mahesh Thakur and others v. Lakshman Prasad Thakur and
another(5) and State Madhya Pradesh v. Triveni Prasad(6) on
which reliance has been placed by counsel for the respond-
ents.
We have gone through Ahmad Din v. Abdul Selem,(7) which
has been cited with approval in Shambhu Nath Chopra v.
State,(8) on which reliance. has been placed by counsel for
the appellants. We find however that in Ahmad Din’s case
(supra) the Punjab High Court did not take proper notice of
the requirement of section 4 of the Oaths Act that the
courts and persons mentioned in clause (a) could administer
oaths only "in discharge of the duties or in exercise of
the powers imposed or conferred upon them respectively by
law." We have also examined the reasoning in Shambhu Nath
Chopra’s case (supra), but the Delhi High Court there went
wrong in holding that the evidence on affidavits referred to
in section 145 of the Code was of a formal character within
the meaning of section 510A so as to attract section 539-
AA.
At the High Court has rightly held in the two impugned
judgments that the affidavits were inadmissible in evidence
as they were sworn before Magistrates who were never in
seisin of the case, we find no force in these appeals and
they are hereby dismissed.
P.H,P. Appeals dis-
missed.
(1) A.I.R. 1944 Cal. 283. (2) A.1.R. 1966 Raj. 5.
(3) A.I.R. 1969 All. 405. (4) A.I.R. 1970 Orissa 209.
(5) (1971) 19 Bihar, Law
Journal 727. (6) [1971] XVI M.P.L. J. 1059a
(7) A.I.R. 1966 Pb. 528. (8) A.I.R. 1970 Delhi 210.
13 -- 1:158SCI/77
178
STATE OF KERALA
v.
M.T. JOSEPH
November 25, 1976
[A. N. RAY, C.J., M.H. BEG AND JASWANT SINGH, JJ.]
Kerala Land Reforms Act 1963--Kerala Government Land
Assignment Act 1960--Sec. 8---Whether after a person ac-
quires title to Government land any further restrictions can
be imposed.
The Government of Travancore sanctioned a scheme for the
reclamation of the Vimbana Lake upon terms and conditions
contained in at document dated 4-10-1963. The document
provided that one Joseph his father on payment of Rs. 10’/-
per acre which was to. be recovered in 10 equal instalments
would be given possession of certain tracts of land which
they undertook to reclaim. The said agreement was modified
by an order dated 12-2-1941 and a fresh agreement was exe-
cuted in July 1941. The said agreement provided that till
tie remittances of all amounts due to the Government by way
of land value are paid the executant shall have no right of
alienation in respect of the property in question and that
till then the property shall remain with the Government as
sole owner. It further provided that, until the entire land
value is paid by the executant and until the assignment of
the land and issue of Patta is completed, the executant
undertook not to do any act which might reduce the value of
tie property. Joseph complied with the conditions laid
down in the agreement and ;acquired full ownership rights
by fulfilling the said terms. In 1957, Joseph executed
a deed of settlement of this land. Thereafter Kerala Land
Reforms Act of 1963 was passed so that the State Land Board
started proceedings for the surrender of the land. The
question before the Land Board was whether the whole land
should be treated as a single unit belonging to Joseph or
whether it may be divided and treated as separate units of
persons in whose favour Joseph made the settlement. If the
children of Joseph had acquired rights under the settlement
each of them could be treated as entitled to compensation
for a separate unit. The State relied on section 8 of
the Kerala Government Land Assignment Act 1960 which pro-
vides that all provisions, restrictions conditions and
limitations contained ha any Patta or other document evi-
dencing an assignment of- Government land shall be valid and
take effect according to their tenure, any rule of law or
usage to the contrary notwithstanding.
Dismissing the appeal,
HELD: Tie terms in the 1941 agreement operated as a
restraint upon the alientation of the rights only so long as
all the amounts due to the Government by way of land revenue
were not paid up. Since, in the present case the entire
amount had been paid by 10 yearly instalments before the
year 1957 and since the Government had effected the mutation
in its record acting upon the settlement of 1957 in
favour of the children of Joseph, it could not be said
that there was any patta or other documents containing any
condition to which section 8 of the Act applied. The chil-
dren derived rights under the deed of settlement and there-
fore, each of them is entitled to compensation for a sepa-
rate unit. [180 C-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 587-696
& 598-600 of 1976.
(Appeals by Special Leave from the Judgment and order
dated 13th of July 1975 of the Kerala High Court in CRP Nos.
1188, 1227, 1250, 1272. 1278, 1279., 1284-1287, 1309, 1312
and 1386/73).
179
M.M. Abdul Khader, Adv. Genl. and K.M.K. Nair, for the
Appellants.
T.S. Krishnamoorthy Iyer and P.K. Pillai, for RR. ex-
cepting R. 8 in CA 587/76.
The Judgment of the Court was delivered by
BEG, J.--These appeals by special leave raise the ques-
tion whether the Kerala High Court had correctly interpreted
and applied Section 8 of the Kerala Govt. Land AsSignment
Act, 1960 (hereinafter referred to as ’the Act’) to the
cases before us. This provision reads as follows:
"8. All provisions, restrictions,
conditions and limitations over, contained in
any Patta or other document evidencing an
assignment of Government land shah be valid
and take effect according to their tenor, any
rule of law of usage to the contrary
notwithstanding".
The facts upon which the provision was sought to be
applied are these: On 23 October, 1939, the Government of
Travancore sanctioned a. scheme for the reclamation of the
Vimbang Lake upon terms and conditions which were set forth
in a document dated 4 October, 1939. The agreement provided
that one M. T. Joseph and his father, on payment of Rs. 10/-
per acre, which were to be recovered in ten equal instal-
ments, would be given possession of certain tracts of land
which they undertook to reclaim. For the first two years
after what is called the "Registry" of the names of the two
lessees no tax was to be levied. The "Registry" was liable
to be cancelled if adequate progress was not made within
these two years. It appears that the agreement was modified
by an order dated 12 February, 1941 and a fresh agreement
was executed in July 1941 by M.T. Joseph (now dead) who
entered into possession of Keyal land, constructed the ring
bunds at considerable expense, and brought the very large
tracts of and to be reclaimed under paddy cultivation. In
June 1957, M.T. Joseph executed a deed of settlement of all
this land, after he had acquired full ownership rights by
fulfilling the terms of the agreement. The Act which is
sought to be now applied was then passed. After that, the
Kerala Land Reforms Act of 1963. was passed so that the,
"State Land Board" started proceedings for the surrender of
these lands in accordance with the provisions of the Land
Reforms Act.
The only question now before us is whether, by an appli-
cation of section 8 of the Act, the whole land is to be
treated as a single unit belonging to M.T. Joseph (since
dead), on the dispositions made by M.T. Joseph, under the
deed of settlement executed by him on 15th June, 1957,
distributing the land among his children, resulted in sepa-
rate units for the purposes of compensation for the land
surrendered. If the children had acquired right under the
deed of settlement each of them could be treated as entitled
to compensation for a separate unit. If the deed was of no
effect, the mere fact that the children were in possession,
under an authority from their father could not change the’
ownership of the land in the constructive possession of the
father.
We have been taken through the deed of agreement of
July, 1941, with the Government. which contains the follow-
ing term, the effect of which has to be determined:
180
"Till the remittance of all amount due
to. the Government by way tharavila (land
value) etc. the executant shall have no right
of alienation in respect of the schedule
property and the property shall remain with
the Government as sole owner. The executant
shall remit the tax at the thirteenth thoram
in the village office every year after the
first two years of registry so long as no
default is made in the payment of instalment
and obtain receipt therefor. Until the entire
tharavila (land value under this agreement as
stated above is paid by the executant and
until the assignment of the land and issue of
patta is completed the executant undertakes
not to do any act which may reduce the value
of the property and if as stated above due
to any reason the property is recovered. from
the executant he shall not put forward any
claim for improvements etc. and the property
shall be surrendered to Government".
It is clear to us that this term in the agreement oper-
ated as a restraint upon the alienation of rights only so.
long as. all the amounts due to the Government as Tharavila
had not been paid up. The whole amount had to be paid up in
ten yearly instalments. It has been paid up before 1957.
Furthermore, as the Kerala High Court found, the settlement
of land on 15th June, 1957 had not merely been given effect
to by a mutation in the relevant Government records but
pattas had actually been given by the Government, acting
upon the settlement of 1957, in favour of the children of
M.T. Joseph. Hence, it could not be said that there was any
patta of other document containing any condition to which
Section 8 of the Act could apply. We find, from the Judgment
under appeal, that several questions, which have no real
bearing on the rights of the parties, were: also. argued.
One of these questions was whether land could be acquired by
adverse possession by the alienees of the allottees of the.
land from the Government under the scheme for its reclama-
tion. We fail to see how a question of adverse possession
arises here when the Government itself recognises the
rights of the children of M.T. Joseph in the pattas executed
by it in their favour.
The High Court recorded the following findings about the
Government acting on the terms of the settlement of 15th
June, 1957, the correctness of which had not been challenged
before us:
"This settlement deed has been
recognised by the Government mutation has
been effected in the names of the children and
pattas have also. been issued to them. It has
been further stated on behalf of the revision
petitioners (the heirs of the said Joseph and
those who took under the settlement deed
dated 15.6.1957) that levy under the Kerala
Rice and Paddy (Procurement by Levy) Order,
1966, has been collected from each of the
shares under the deed of 1957, that land tax
has been imposed on each of the shares sepa-
rately and agricultural income-tax collected
on the income of the properties of each of the
sharers".
We do not think it is necessary to go into any other
question. The High Court was of opinion that some facts had
still to be as-
181
certained when the case goes back to the Land Board for
proceeding on the footing determined by the High Court. We
think that we should make it clear that matters to. be still
determined could not, in view of our finding, involve deter-
mination of any question of adverse possession of the
claimants, the children of M.T. Joseph.
For the reasons given above, we dismiss these appeals.
We make no order as to costs.
P.H.P, Appeals dis-
missed.
182