Supreme Court: In the present case, an appeal under Article 136 of the Constitution was directed against an order dated 06-02-1952, passed by a Single Judge of the Mysore High Court (‘High Court’) in revision confirming the conviction and sentence of appellant passed by the City Magistrate, Bangalore, and upheld on appeal by the Second Additional Sessions Judge, under Sections 1811 and 1932 of the Penal Code, 1860 (‘IPC’) and sentenced to two years’ rigorous imprisonment for each offence and the sentences were to run concurrently.
The 3-Judges Bench of S.R. Das, Ghulam Hasan*, and N.H. Bhagwati, JJ., held that it was incumbent upon appellant to show the whole of assets in the probate application and affidavit. The Supreme Court held that the High Court rightly agreed with the Courts below, that appellant in all his dealings with various properties of testator, acted as executor and not as agent or as an advocate of one of the legatees. The Supreme Court agreed with the High Court that appellant who was in law bound to state the truth in affidavit, knowingly made a false statement which he knew to be false or did not believe to be true and therefore was guilty under Section 193 of IPC. It was also held that appellant was even guilty under Section 181 of IPC as he made a false statement on oath to a public servant authorised by law to administer the oath.
Background
Appellant, a Senior Advocate of the High Court, was one of the joint executors under a will dated 22-08-1935, followed by two codicils dated 01-05-1942 and 13-01-1943. The testator died on 22-09-1943, leaving behind immovable and movable properties. Appellant, along with his co-executor, applied for probate on 19-01-1944 and the same was granted on 11-02-1944. On 19-09-1949, a petition signed by K. Lakshmi, daughter of the testator’s son, was presented to the Chief Justice of the Mysore High Court complaining against appellant’s conduct as executor in the administration of the properties of her grandfather. A complaint was filed under Section 4763 of the Criminal Procedure Code, 1973 by the District and Sessions Judge, Bangalore.
It was submitted that appellant was bound by law to state in his application for probate and the affidavit all the property of which the testator died possessed and which had come or was likely to come to appellant’s hands, but he disclosed only 3 items valuing them at Rs 21,096-10-8 and paid the requisite fee thereon and omitted to disclose other properties. Therefore, appellant committed an offence under Section 181 by making a false statement on oath to a public servant or person authorised to administer oath which he either knew or believed to be false or did not believe to be true, and under Section 193 by false evidence given intentionally, by a person legally bound by an oath to state the truth, in any stage of a judicial proceeding.
The trial Magistrate held that in the course of the administration, appellant acted throughout as an executor and not as an agent of Lakshmi as contended for by appellant and held that White House was property which came into the hands of appellant and was in any event likely to come into his hands and his conduct in omitting that property from the list of assets mentioned in the affidavit was dishonest, and that he made a false statement in the affidavit knowing it to be false or not believing it to be true. It was concluded that appellant made a false affidavit on 19-1-1944, which was false to his knowledge, by omitting to disclose the more important properties and thus diminishing the value of the assets with a view to defrauding the Government by paying a nominal court fee of Rs 635-15-0 out of Rs 7000 he had already collected. It was held that the essential ingredients of the offences under Sections 181 and 193 of IPC had been made out and appellant was guilty of the offences charged.
The Second Additional Sessions Judge, in appeal, agreed with the findings reached by the trial court and held that there was absolutely no excuse for appellant to omit to mention the White House in the affidavit and that the testator had directed that the same should be sold between six months and a year after the end of the Great War. Therefore, appellant had no reason to think that there would be no end to the war and that the property would not come to his hands and even though appellant did not get the actual possession of the property, the same being with Lakshmi, it certainly was property which was likely to come to his hands. The first appellate court further found that appellant purposely omitted the big items of properties with the sole motive of wrongful gain to himself which indirectly resulted in loss to others. It further found that there were no bona fides on appellant’s part and it agreed with the finding of the trial court that appellant prepared a fake document for the present case, as the signature and the ink on that document looked fresh. Thus, the appeal was dismissed.
In revision, the High Court agreed with the view taken concurrently by the two courts below that in all appellant’s dealings with the various properties of the testator, appellant acted as an executor and not as an agent or as an advocate of one of the legatees. The High Court opined that the properties in question were properties which the testator was not only possessed of at the time of his death, but they were properties which came to the hands of the executors or were likely to come to their hands. The High Court held that appellant who was in law bound to state the truth in the affidavit, knowingly made a false statement which he knew to be false or did not believe to be true and was therefore guilty under Section 193 of IPC. It was further held that appellant was also guilty under Section 181 of IPC as he made a false statement on oath to a public servant authorised by law to administer the oath. Thereafter, appellant obtained special leave under Article 136 of the Constitution against the order passed in revision by the High Court and the matter, therefore, came up for appeal before this Court.
Analysis, Law, and Decision
The Supreme Court held that appellant was bound to show the property in the affidavit, in particular the White House with the shops appurtenant thereto as Lakshmi’s temporary possession until sale of the house, did not and could not oust appellant’s control as executor to deal with that property as if he was in actual possession of it. The Supreme Court stated that reference from time to time to Lakshmi in relation to his dealings with the property did not mean that he had divested himself of such control over the property. The various acts of dealing with the property and appellant’s conduct in relation thereto could only conclude that the property had come to his hands or at any rate was likely to come to his hands.
The Supreme Court stated that appellant unjustifiably introduced the unnecessary qualification that the property to be shown must be one which was likely to come to the executors’ hands “in the near future”. The Supreme Court noted that the qualification appellant sought to justify was on the ground that the period of the duration of the war was uncertain. The Supreme Court opined that no question of bona fides on appellant’s part arose for he ought to have known as a lawyer of standing that the mention of the White House in the affidavit was essential and he could not act upon the advice, assuming that it was tendered, of Shama Rao, who did not seem to have applied his mind to the question and gave flimsy reasons in support of the advice.
The Supreme Court relied on Amrit Rae v. B. Sangam Lal, 1942 SCC OnLine Oudh CC 199 and Gokaldas Madhavji v. State of Bombay, ILR (1881) 6 Bom 460 and opined that it was incumbent upon appellant to show the whole of the assets in the application for probate and the affidavit.
The Supreme Court took note of the contention that appellant had no intention to defraud the beneficiaries under the will and if he did not show the most valuable property in the application or the affidavit, he in good faith wanted to benefit the estate of the testator and indirectly the legatees themselves, and thereafter opined that even if this fact was assumed in favour of appellant, it would not take the case out of the mischief of Sections 181 and 193 of IPC.
The Supreme Court stated that the scope of an appeal under Article 136 of the Constitution was limited, and the jurisdiction of this Court could be exercised only in exceptional cases of miscarriage of justice or where there had been a flagrant disregard of the rules of law or procedure. The Supreme Court concluded that no interference was called for and therefore dismissed the appeal.
[L.S. Raju v. State of Mysore, (1954) 2 SCC 473, decided on 19-10-1954]
*Judgment authored by: Justice Ghulam Hasan
Advocates who appeared in this case :
For the Appellant: B. Somayya, Senior Advocate (M.R. Krishna Pillai and K.R. Krishnaswamy, Advocates, with him), for the Appellant;
For the Respondent: M.C. Setalvad, Attorney General for India, C. Chennappa, Assistant Advocate General of Mysore (R. Ganapathy Iyer and P.G. Gokhale, Advocates, with them), for the Respondent.
**Note: Making of False Statement
In K. Karunakaran v. T.V. Eachara Warrier, (1978) 1 SCC 18, the Supreme Court held that when the trial of appellant commences under Section 193 of the Penal Code, 1860, the reasons given in the main judgment of the High Court should not weigh with the criminal court in coming to its independent conclusion whether the offence under Section 193 of IPC has been fully established against appellant beyond reasonable doubt. It will be for the prosecution to establish all the ingredients of the offence under Section 193 of IPC against appellant and the decision will be based only on the evidence and the materials produced before the criminal court during the trial and the conclusion of the Court will be independent of opinions formed by the High Court.
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1. Corresponding Section 216 of the Nyaya Sanhita, 2023 (‘BNS, 2023’)
2. Section 229 of the BNS, 2023
3. Corresponding Section 522 of the Nagarik Suraksha Sanhita, 2023