<NAME>, J.

1. <NAME>, the Appellant before us by Special Leave, purchased some lease hold land for Rs. 10,500/- from <NAME> and others under a sale deed of 7-7-1958 (Exhibit B-7) and some other lands shown in a sales' certificate dated 15-7-1960, (Exhibit B-51) sold to him for Rs. 6,550/- at a public auction of immovable property held to realise the dues in respect of loans taken by <NAME> under the Land Improvement Loans' Act 19 of 1883. Both <NAME> and <NAME>, mentioned above, were impleaded as codefendants in a partition suit, in Vellore, Madras, now before us in appeal, commenced by a pauper application dated 23-6-1958 filed by the plaintiff-respondent <NAME> so that the suit must be deemed to have been filed on that date. The plaintiff respondent before us had challenged, by an amendment of his plaint on 18-9-1961, the validity of the- sales of land mentioned above, consisting of items given in Schedule 'B' to the plaint, on the ground, inter-alia, that these sales, of joint property in suit, were struck by the doctrine of lis pendens embodied in Section 52 of the Indian Transfer of Property Act. As this is the sole question, on merits, raised by the appellant before us for consideration, we will only mention those facts which are relevant for it decision.

2. Before, however, dealing with the above question, a preliminary objection to the hearing of this appeal may be disposed of. <ORG> and the Court of first appeal having held that the rule of lis pendens applied to the sales mentioned above, the appellant purchaser had filed a second appeal in <ORG>, which was substantially dismissed by a learned Judge of that Court, on 19-7-1968, after a modification of the decree. Leave to file a Letters Patent appeal was not asked for in the manner required by Rule 28, Order IV of the Rules of Madras High Court, which runs as follows :

28. When an appeal against an appellate decree.or order has been heard and disposed of by a single Judge, any application for a certificate that the case is a fit one for further appeal under clause 15 of the Letters Patent shall be made orally and immediately after the judgment has been delivered.

But, the appellant, after obtaining certified copies of the judgment and decree of <ORG>, sent a letter to the <ORG> that the case be listed again for obtaining a certificate of fitness to file a Letters' Patent appeal. The case was, therefore, listed before the learned Judge and an oral application which was then made for grant of a certificate, was rejected on 6-9-1968 on the ground that it had not been made at the proper time.

3. It was contended, on behalf of the respondent, that, in the circumstances stated above, the appellant must be deemed to have been satisfied with the Judgment of the High Court as his Counsel did not ask for leave to file a Letters' Patent appeal as required by Order IV Rule 28 of the Rules of the Madras High Court (that is to say, immediately after the judgment has been delivered). The following observations of this Court in <CITATION> . @ 52-53 were cited to contend that the appeal before us should be rejected in limine :

Normally, an application for" special leave against a second appellate decision would not be granted unless the remedy of a Letters Patent Appeal has been a vaild of. In fact, no appeal against second appellate decisions appears to be contemplated by the Constitution as is evident from the fact that Article 133(3) expressly provides that normally an appeal will not lie to this Court from the judgment, decree, or final order of one Judge of <ORG>. It is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the Court would grant the application and proceed to deal with the merits of the contentions raised by the appellant. But even in such cases, it is necessary that the remedy by way of a Letters' Patent Appeal must be resorted to before a party comes to this Court.

4. In reply to the preliminary objection, Mr. <NAME>, appearing for appellant, has assailed the validity of the above mentioned Rule 28 of Order IV itself. It is submitted that the rule conflicts with the provisions of Clause 15 of the Letters' Patent of the Madras High Court requiring only that the Judge who passed the judgment should declare that the case is fit one for appeal as a condition for appealing. It was urged that the period of limitation for filing an appeal should not, in effect, be cut down by a rule such as the one found in Rule 28, Order IV of the Rules of Madras High Court. It was urged that, before Article 117 of the Limitation Act of 1963 introduced a period of thirty days from a decree or order for filing a Letters' Patent appeal, the period of limitation for such appeals fell under the residuary Article 181 of the old Limitation Act . As applications for certification fell outside the provisions of the Civil Procedure Code and there was no specific provision for them in the Limitation Act <ORG> could frame its own rule prescribing the mode and time for making such applications.

5. Rule 28 of Order IV of <ORG> does not purport to affect the power to give the declaration contemplated by Clause 15 of the Letters' Patent. In some <ORG>, there is no rule of the <ORG> laying down that the application should be oral and made immediately after the judgment has been delivered. It is, however, evident that a rule such as Rule 28 of Order IV <ORG> is most useful and necessary particularly when a period of thirty days only for filing an appeal has been prescribed in 1963. The Judge pronouncing the judgment can decide then and there, in the presence of parties or their counsel, whether the case calls for a certificate. In a suitable case, where a party is able to prove that it was prevented due to some cause beyond its control from asking for leave at the proper time, the Judge concerned may condone noncompliance by a party with Rule 28, Order IV, of <ORG>, or extend time by applying Section 5 of the Limitation Act. This salutary rule could not, therefore, be held to be ultra vires (sic) invalid.

6. There is, however, another answer to the preliminary objection. It was contended that the case before us is covered by what was laid down by this Court in <NAME> case (Supra) when it said (at page 53) :-

...we do not think it would be possible to lay down an unqualified rule that leave should not be granted if the party has not moved for leave under the Letters Patent and it cannot be so granted, nor is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. Having regard to the wide scope of the powers conferred on this <ORG> under Article 136 , it is not possible and, indeed, it would not be expedient, to lay down any general rule which would govern all cases. The question as to whether the jurisdiction of this <ORG> under Article 136 should be exercised or not, and if yes, on what terms and conditions, is a matter which this <ORG> has to decide on the facts of each case.

In that particular case, this <ORG> had actually heard and allowed the appeal by Special leave because it he'd that there was no general inflexible rule that special leave should be refused where the appellant has not exhausted his rights by asking for a certificate of fitness of a case and because that case called for interference.

7. It is urged before us that the appellant had done whatever he possibly could, in the circumstances of the case, to apply for and obtain a certificate of fitness after going through the judgment of <ORG>, so that the rule that alternative modes of redress should be exhausted before coming to this Court had been really complied with. Each case must, we think, be decided upon its own facts. In the case before us, although the appellant was not shown to have attempted any explanation of failure to apply for the certificate at the proper time, yet, the special leave petition having been granted, and the case having passed, without objection, beyond the stage of interim orders and printing of the records, we have heard arguments on merits, also. The merits may now be considered.

8. The challenge on the ground of lis pendens, which had been accepted by the Courts in Madras, right up to <ORG>, was directed against two kinds of sales : firstly, there was the ostensibly voluntary sale of 7-7-1958 under a sale deed by the defendant <NAME> and his major son <NAME> and three minor sons <NAME>, <NAME> alias Thanikachalam, and <NAME> in favour of the defendant appellant; and, secondly, there was the sale evidenced by the sale certificate (Exhibit B. 51) of 15-7-1960 showing that the auction sale was held in order to realise certain "arrears under hire purchase system due to Shri O. D. <NAME>" The words "due to" must in the context, be read as "due from' because "falsa demonstration non nocet

9. The deed of the voluntary sale for Rs. 10,500/- showed that Rs. 7375.11/- Ans. were to be set off against the money due on a decree obtained by the purchaser against the sellers in original suit 2/56 of the Vellore Sub-Court, Rs. 538.5/- Ans. were left to liquidate the amount due for principal and interest due to the purchaser on a bond dated 14-10-1957, by <NAME> <NAME>, Rs. 662.9/- Ans. was to be set off to liquidate another amount due to the purchaser from <NAME> on account of the principal and interest on another bond executed by <NAME>, Rs. 1250.0.0/- was left to pay off and liquidate the balance of a debt due to one <NAME> from <NAME>, Rs. 100.0.0 /-were meant to settle a liability to the Government in respect of a purchase of cattle and for digging of some well, Rs. 51.13/- Ans. were to go towards settling a similar liability, and only Rs. 521.11 /-Ans. were paid in cash to the seller after deducting other amounts for meeting liabilities most of which were shown as debts to the purchaser himself. It may be mentioned here that, on 17-1-1944, <NAME> had executed a mortgage of some of the property in Schedule 'B' of the plaint for Rs. 7,500/- in favour of <NAME>, and he had executed a second mortgage in respect of one item of property of Schedule 'B' in favour of <NAME>, who had assigned his rights to <NAME>. A third mortgage of the first item of Schedule 'B' properties was executed on 27-5-1952 by <NAME>, in favour of the appellant <NAME>, was said to be necessitated by the need to pay arrears of Rs. 3,000/- income tax and for discharging a debt and a pronote in favour of a man called <NAME>. In 1955, an original suit No. 124/1955 had been filed by <NAME> who had obtained orders for the sale of the first item of Schedule 'B' properties shown in the plaint. The original suit No. 2 of 1956 had been filed for principal and interest due on 27-5-1952 to the appellant who had obtained an attachment on 5-1-1956 of some Schedule 'B' properties. The appellant had obtained a preliminary decree on 25-1-1956 in his suit and a final decree on 14-9-1957. All these events had taken place before .the institution of the partition suit on 23-6-1968. But, the voluntary sale to satisfy decretal amounts was executed after this date. The second sale was an involuntary sale for realisation of dues under the provisions of Section 7 of the Land Improvement Loans Act 19 of 1883 which could be realised as arrears of land revenue. There was nothing in the sale certificate to show that the due for which properties were sold were of anyone other than <NAME> individually.

10. On the facts stated above, the appellant <NAME> claims that both kinds .of sales were outside the purview of the doctrine of lis pendens inasmuch as both the sales were for the discharge of preexisting liabilities of the Hindu joint family of which <NAME> was the karta. The liabilities incurred by <NAME>, it was submitted, as karta of the family, had to be met, in any case, out of the properties which were the subject matter of the partition suit. It was urged that where properties are liable to be sold for payment of such debts as have to be discharged by the whole family, only those properties would be available for partition in the pending suit which are left after taking away the properties sold for meeting the pre-existing liabilities of the joint family. In the, case of the sale for discharging dues under the Land Improvement Loans Act it was also contended that they obtained priority over other claims, and, for this additional reason, fell outside the scope of the principle of lis pendens.

11. The defendant-respondent <NAME> and the defendant-appellant <NAME> had both pleaded that the properties in suit were acquired by <NAME> with his own funds obtained by separate business in partnership with a stranger and that <NAME>, plaintiff, had no share in these properties. The plaintiff-respondent's case was that although the properties were joint, the liabilities sought to be created and alienations made by <NAME> were fraudulent and not for any legal necessity, and, therefore, not binding on the family.

12. <ORG> had found that the properties given in Schedule 'B' were joint family properties of which the defendant-respondent <NAME> was the <ORG> in possession. This finding was affirmed by the first <ORG> and was not touched in <ORG>. It did not follow from this finding that all dealings of <NAME> with joint family properties, on the wrong assumption that he was entitled to alienate them as owner and not as <ORG>, would automatically become binding on the joint family. A <ORG> is only authorised, to make alienations on behalf of the whole family where these are supported by legal necessity. It was no party's case that the alienations were made on behalf of, and, therefore, were legally binding on the joint family of which plaintiff-respondent <NAME> was a member.

13. <ORG> recorded a finding on which the learned Counsel for the appellant relies strongly : "There is overwhelming documentary and oral evidence to show that the sale deed Exhibit B.7 and the revenue sale are all true and supported by consideration and that the 12th Defendant would be entitled to them, if these sales were not affected by the rule of Lis pendens within the meaning of Section 52 of the Transfer of Property Act." It may be mentioned here that the 12th Defendant is no other than the appellant <NAME>, the son-in-law of defendant-respondent <NAME>, 'who had purchased the properties covered by both the impugned sales. The plea of the plaintiff-respondent <NAME> that the sales in favour of <NAME>, the 12th defendant-appellant, were fraudulent and fictitious and not supported by valuable consideration was rejected. Although, <ORG> decree for the partition included the properties covered by the two impugned sales evidenced by Ex. B.7 and B.51, yet, the Commissioner who was to divide the properties by metes and bounds, was directed to allot to <NAME>'s share, so far as possible, properties which were covered by Exhibit B.7, and B.51. This implied that the liabilities created by the decrees for whose satisfaction the sale deed dated 7-7-58 (Exhibit B-7) was executed and the revenue sale of 16-3-1960 for loans under an agreement were treated as the separate liabilities of the defendant <NAME> and not those of the joint family.

14. <ORG> as well as <ORG> had also rejected the plea that the revenue sale of 16-3-1960 to satisfy preexisting liabilities of <ORG> had any priority over the rights of the plaintiff-respondent may get in the partition suit. The result was that the partition suit was decreed subject to a direction for the allotment of the properties covered by Exhibit B. 7 and B.51 so that the purchaser may retain these properties if 'they were allotted to <ORG>.

15. <ORG> had described the sale of 7-7-1958 as a "voluntary alienation", and, thereby, placed it on a footing different from an involuntary sale in execution of a decree in a mortgage suit. The obligations incurred before the sale of 7-7-1958, by reason of the decrees in the mortgaged suits, were not on this view, liabilities which could be equated with either transfers prior to the institution of the partition suit or with sales in execution of mortgage decrees which are involuntary. So far as the revenue sale was concerned, <ORG>, after setting out the terms of Section 7 of the Land Improvement Loans Act 19 of 1883, held that only that land sold was to be excluded from the purview of the principle 'of Lis pendens /for the improvement of which some loan was taken. This meant that only that part of the loan was treated as a liability of the joint family as could be said to be taken for the joint land. It, therefore, modified the decrees of the Courts below by giving a direction that further evidence should1 be taken before passing a final decree to show what land could be thus excluded from partition.

16. The plaintiff-appellant has relied upon certain authorities laying down that the doctrine of lis pendens is not to be extended to cover involuntary sales in execution of a decree in a mortgage suit where the mortgage was prior to the institution of the suit in which the plea of Lis pendens is taken, because the rights of the purchase] in execution of a mortgage decree date back to the mortgage itself They are : <CITATION> AIR 1932 Madras 566 <CITATION> , <CITATION> and Ors. Har Prashad Lal v. <NAME> ILR 32 Calcutta 891. Reliance was also placed on the principle laid down in <CITATION> ., to contend that, since Section 52 of the Transfer of Property Act does not protect transferors, a transfer on behalf of the whole joint 'Hindu family would be outside the purview of the principle in a partition suit. The contention advanced on the strength of the last mentioned case erroneously assumes that the impugned sales were on behalf of the joint family.

17. Learned Counsel for the plaintiff-respondent has, in reply, drawn our attention to the following observations of <ORG>, Ag. C.J., expressing the majority opinion in <CITATION> . :

...the language of Section 52 has been held to be applicable not only to private transfers but also to <ORG> sales held in execution of decrees. S. 2(d) does not make S. 52 inapplicable to Ch. 4, which deals with mortgages. This is now well-settled : vide <NAME> v. <NAME> (A) and <CITATION> ) followed in numerous cases out of which mention may be made of <NAME>).

(A) (1888) 15 Cal. 756,15 I.A. 97 (B) (1898) 25 Cal. 179,24 LA. 170.

(C) (1901) 23 All. 60, (1900) A.W.N. 199.

But, as we have no actual sale in execution of a mortgage decree, this question need not be decided here. Another decision to which our attention was drawn was : <NAME> v. <NAME> and Anr. AIR 1952 Nag. 341.

18. The suggestion made on behalf of the appellant, that attachment of some schedule 'B' property before judgment in the purchaser's mortgage suit could remove it from the ambit of Lis pendens, is quite unacceptable. A contention of this kind was repelled, in <CITATION> at 211 by this Court as clearly of no avail against the embargo imposed by Section 52 of the Transfer of Property Act.

19. <ORG> had rightly distinguished cases cited on behalf of the appellant before it by holding that exemption from the scope of lis pendens cannot be extended to voluntary sales in any case. Obviously, its view was that, even where a voluntary sale takes place in order to satisfy the decretal amount in a mort gage suit, the result of such a sale was not the same as that of an involuntary sale in the course of execution proceedings where land is sold to satisfy the decree on the strength of a mortgage which creates an interest in the property mortgaged. <ORG> had observed that, as regards the satisfaction of the mortgage decree in his favour, which was part of the consideration for the sale of 7-7-1958, the appellant purchaser decree holder could get the benefit of Section 14 Limitation Act and still execute his decree if it remained unsatisfied due to failure of consideration.

20. An examination of the sale deed of 7-7-1958 discloses that it is not confined to the satisfaction of the decretal amounts. Other items are also found in it. The sale deed does not purport to be on behalf of the Hindu joint family of which <NAME> the plaintiff and <NAME> Defendant No. 1 could be said to be members. It no doubt mentions the sons of <NAME> Mudaliar but not <NAME>, plaintiff, among the sellers. At most, it could be a sale binding on the shares of the sellers. As already indicated, <NAME>, Defendant-Respondent, as well as <NAME>, Defendant-Appellant, having denied that the properties in dispute were joint, could not take up the position that the sales were binding on the whole family. <NAME>, we are unable to hold that the assumption of <ORG> that the voluntary sale could not bind the whole family, of which <NAME> was the karta, was incorrect.

21. Learned Counsel for the appellant had also relied on <CITATION> .  S.C.R. 878 That was a case in which, before the deposit of money by the- preemptors in a suit to enforce their rights to pre-emption, the vendee had sold his rights to the appellant who had an equal right of pre-emption. It was held there that the claim for pre-emption could be defeated by such a device which fell outside the purview of the principle of lis pendens. We think that this decision turns upon its own facts and on the nature of the right of preemption which, as was observed there, is a weak right. This Court had held that this weak right could be defeated by a sale which a vendee is compelled to make for the purpose of defeating the right, provided the purchaser's superior, or equal right to pre-emption had not been barred by limitation. On the question considered there, the view of <ORG> in <NAME> v. <NAME> (A.I.R. 1949 East Punj. 193) was preferred to the view of <ORG> in <CITATION> . The observations made by this Court with regard to the doctrine of lis pendens when a plaintiff is enforcing a right of pre-emption must; we think, be confined to cases of sales which could defeat preemptors' claims. It has to be remembered that a technical rule of the law of pre-emption is that the preemptor, to succeed in his suit, must continue to possess the right to pre-empt until the decree for possession is passed in, his favour.

22. As regards the revenue sale of 16-3-1960 (Exhibit B.51) we find that the sale certificate is even less informative than the voluntary sale deed considered above. Nevertheless, the view taken by <ORG> was that any land for the improvement of which loan is shown to have been, taken by <NAME> would be excluded from the purview of the, doctrine of Lis pendens. It is, however, urged that <ORG> had given effect to clause (c) of Section 7 of the Land Improvement Loans Act of 1883, but had overlooked clause (a). Here, the relevant part of Section 7 , Sub-section (1.) of this Apt may. be set out. It reads as follows :-

Recovery of loans.-(1) Subject to such rules as may be made under Section 10 , all loans granted under this Act, all interest (if any) chargeable thereon, and costs (if any) incurred in making the same shall, when they become due be recoverable by the Collector in all or any of the following modes, namely :-

(a) from the borrower-as if they were arrears of land revenue due by him;

(b) from his surety (if any) as if they were arrears of land revenue due by him;

(c) out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land;

(d) out of the property comprised in the collateral security (if any)-according to the procedure for the realization of land revenue by the sale of immovable property other than the land on which that revenue is due :

Provided that no proceeding in respect of any land under clause (c) shall affect any interest in that land which existed before the date of the order granting the loan, other than the interest of the borrower, and of mortgages of or persons having charges on, that interest, and where the loan is granted under Section 4 with the consent of another person, the interest of that person, and of mortgagees of, or persons having charges on, that interest.

23. <ORG> was also placed 011 Section 42 of the Madras Revenue Recovery Act of 1864 which reads as follows :

All lands brought to sale on account of arrears of revenue shall be sold free of all incumbrances, and if any balance shall remain after liquidating the arrears with interest and .the expenses of attachment and sale and other costs due in respect to such arrears, it shall be paid over to the defaulter unless such payment be prohibited by the injunction of a Court -of competent jurisdiction.

24. It will be seen that the assumption that the dues could be realised as arrears of land revenue would only apply to the interest of the borrower so far as clause (7)(1)(a) is concerned. The proviso enacts that even recoveries falling under Section 7(l)(c) do not affect prior interests of persons other than the borrower or of the party which consents to certain loans. In the case before us, the borrower had himself taken up the case that the loan was taken by him individually for the purpose of purchasing a pumping set installed on the land. It did not, therefore, follow that this liability was incurred on behalf of (the joint family unless it amounted to an improvement of the joint land. Every transaction of <NAME> or in respect of joint property in his possession could not affect rights of other members. It was for this reason that Section 7(1)(a) was not specifically applied by <ORG>. But, at the same time, the direction that the properties sold should, so far as possible, be allotted to <NAME> meant that the purchaser could enforce his rights to them if they came to the share of <NAME>.

25. The question of paramount claims or rights of the Government for the realisation of its taxes or of dues which are equated with taxes was also raised on behalf of the appellant on the strength of <CITATION> that case, the origin of the paramount right of the <ORG> to realise taxes due, which could obtain priority over other claims, was traced to the prerogatives of the British crown in India. Apart of the fact that there is no claim by the <ORG> before us, we may observe that, where a statutory provision is relied upon for recovery of dues, the effect of it must be confined to what the t -statute enacts. Even under the English law, the terms of the statute displace any claim based on prerogatives of the <ORG> vide Attorney General v. de Keyser's <ORG>  AC 508 And, in no case, can the claim, whatever its basis, justify a sale of that property which does not belong to the person against whom the claim exists. As already observed a claim under Section 7(1)(a) of the Land Improvement Loans Act of 1883 could only be made from the borrower. This meant that, unless it was proved that <ORG>, in taking a loan under the Act, was acting as the karta of the joint Hindu family of which <NAME> was a member, recovery of arrears could only be made from <ORG>'s share in the land. That this could be done was, in our opinion, implied in the direction that the properties sold should, so far as possible, be allotted to the share of <ORG>.

26. As some argument has been advanced on the supposed inapplicability of the general doctrine of lis pendens to the impugned sales, the nature, the "basis, and the scope of this doctrine may be considered here.

27. It has been pointed out, in <NAME> "On lis pendens", that, even before Sir <NAME> framed his ordinances in 1816 "for the better and more regular administration of justice in the chancery, to be daily observed" stating the doctrine of lis pendens in the 12th ordinance, the doctrine was already recognized and enforced by Common law Courts. <NAME>'s ordinance on the subject said :

No decree bindeth any that commeth in bona fide, by conveyance from the defendant before the bill exhibited, and is made no party, neither by bill, nor the order; but, where he comes in pendente lite, and, while the suit is in full prosecution, and without any colour of allowance or privity of the court, there regularly the decree bindeth; but, if there were any intermissions of suit, or the court made acquainted with the conveyance, the court is to give order upon the special matter according to justice.

The doctrine, however, as would be evident from <NAME>'s work mentioned above, is derived from the rules of jus gentium which became embodied in the Roman Law where we find the maxim : "Rem de qua controversia prohibemur in acrum dedicare" (a thing concerning which there is a controversy is prohibited, during the suit from being alienated). <NAME>, in his commentaries on the lows of Scotland (2 <NAME>'s Com. on Laws of Scotland, p. 144) said that it was grounded on the maxim : "Pendente lite nibil innovandum". . He observed :

It is a general rule which seems to have been recognized in all regular systems of jurisprudence, that during the pendence of an action, of which the object is to vest the property or obtain the possession of. real estate, a purchaser shall be held to take that estate as. it stands in the person of the seller, and to be bound by the claims which shall ultimately be pronounced.

29. In the Corpus Juris Secundum (Vol. LIV-p. 570), we find the following definition :

Lis pendens literally means a pending suit; and the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in suit, pending the continuance of the action, and until final judgment therein.

30. Expositions of the doctrine indicate that the need for it arises from the very nature of the jurisdiction of Courts and their control over the subject of litigation so that parties litigating before it may not remove any part of the subject matter outside the power of the court to deal with it and thus make the proceedings infructuous.

31. It is useful to remember this background of Section 52 of our Transfer of Property Act which lays down :

During the pendency in any <ORG>...of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the <ORG> and on such terms as it may impose.

32. It is evident that the doctrine, as stated in Section 52 , applies not merely to actual transfers of rights which are subject-matter of litigation but to other dealings with it "by any party to the suit or proceeding, so as to affect the right of any other party thereto". Hence, it could be urged that where it is not a party to the litigation but an outside agency, such as the tax Collecting authorities of the Government, which proceeds against the subject-matter of litigation, without anything done by a litigating party, the resulting transaction will not be hit by Section 52 . Again, where all the parties which could be affected by a pending litigation are themselves parties to a transfer or dealings with property in such a way that they cannot resile from or disown the transaction impugned before the <ORG> dealing with the litigation, the <ORG> may bind them to their own acts. All these are matters which the <ORG> could have properly considered. The purpose of Section 52 of the Transfer of Property Act is not to defeat any just and equitable claim but only to subject them to the authority of the <ORG> which is dealing with the property to which claims are put forward.

33. In the case before us, the <ORG> had given directions! to safeguard such just and equitable claims as the purchaser appellant may have obtained without trespassing on the rights of the plaintiff-respondent in the joint property involved in the partition suit before the <ORG>. Hence, the doctrine of lis pendens was correctly applied.

34. For the reasons given above, there is no force in this appeal which is dismissed with costs.

<NAME>, <NAME>

35. I have had the advantage of perusing the judgment prepared by my brother, <NAME>, but as I arrive at the same conclusion by a slightly different route I am writing a separate judgment. I may give a few facts to make the judgment self-sufficient. The following pedigree may enable us to appreciate the facts :-

Muniappa <NAME> | ___________________________________________ | | | Doraiswamy <NAME> Chidambara Govindaswamy Muda- (died on 4-9-1937) <NAME> (died 1940) wife 6th Def. (died pending <NAME> 10th Def. suit) | | _____________________ __________________ | | | | | Muniswami Ayyaswami Def. 7 Def, 3 Def. 9 <NAME> (1st Def. <NAME> died pending suit) (Plaintiff) | ________________________________________ | | | | Def. 2 Def. 3 Def. 4 Def. 5 12th Def. (Jayaram <NAME>)-alinee of Def. No. 1.

36. On June 23,1956 <NAME> (Plaintiff) filed a pauper petition No. 137/1958. In the plaint he claimed a partition of B Schedule properties which, according to him belonged to <ORG> consisting of himself and the defendants. While this suit was pending, defendant No. 1-<NAME>-and four of his sons executed a sale deed (Ex. B7) in respect of some lands in Ozhaiyathur village in favour of <NAME> on July 7, 1958. These properties comprised items 5, 15 to 19, 24 and 28 of Schedule B. On July 15, 1960 a certificate of sale (Ex. B51) was issued stating that <NAME> had purchased at public auction immoveable property (described in the certificate) for Rs. 6,500/-. The property is stated to have been sold for "pumpset arrears under Hire Purchase System due by <NAME>". Exhibit B 51. covered items 4, 18, 20, 23 to 27 and 31. It is common ground that these properties, were included in the B Schedule mentioned in the plaint.

37. It is stated in the judgment of <ORG> that <NAME> .got himself impleaded as 12th defendant. He filed a written statement inter alia alleging that the Plaint B Schedule properties were the sole and absolute properties of the 1st defendant. Additional issues were framed in the suit.

38. It appears that by virtue of order dated September 18, 1961, the plaint was amended and paras 24(a) and 24(b) inserted. They read :

24(a) The 12th defendant is a close agnate of the son-in-law of the 1st defendant. He executed the sham and nominal sale deed dated 7-7-1958 in favour of the 12th defendant to defeat the plaintiff's rights and to secrete the properties. It was not acted upon. It is the 1st defendant that continues to be in possession even now. The alleged sale deed is not supported by consideration. The mortgage itself was brought about to defeat any rights.'' In any event on the date of the alleged sale deed dated 7-7-1958 the mortgage decree debt was not subsisting. The plaint was filed in forma pauperis as O.P. 137 of 1958 on the file of <ORG> on 23-6-1958. Thus in any event the sale is hit by the rule of lis pendens and the sale deed dated' 7-7-1958 cannot and does not confer any rights on the 12th defendant.

24(b) The revenue sale is brought about collusively and fraudulently. There was no publication. The 12th defendant never got into possession of any property. The possession still continues to be with the 1st defendant on behalf of the joint family. The sale, is also hit by the rule of lis pendens. It also does not and cannot confer any rights on the 12th defendant.

39. Following additional issues were raised out of the pleadings of the 12th defendant :

(1) Whether the plaint B Schedule properties are joint family properties ?

(2) Whether the plaintiff is entitled to question the alienations in favour of the 12th defendant ?

(3) Whether the sale deed dated 7-7-1958. by the 1st defendant in favour of the 12th defendant true, valid and binding on the plaintiff and. is affected by LIS PENDENS ?

(4) Whether the Revenue sale by the Collector dated 16-3-1960 is liable to be questioned by the plaintiff ?

(5) Is the suit without impleading the Government liable to be questioned by the plaintiff ?

(6) Is the sale of pump set by the 1st defendant to the 12th defendant true, valid and binding on the plaintiff ?

(7) Whether the plaintiff and other members became divided from the 1st defendant after 1939 ?

(8) To what equities, if any, is the 12th defendant entitled ?

(9) Is the plaintiff estopped from questioning the alienations and claiming any right in the B Schedule-properties ?

We are only concerned with issues 3 and 4 above.

<ORG> held that the sale deed, Ex. B7, and the revenue sale "are all true and supported by consideration and that the 12th defendant would be entitled to them, if these sales were not affected by the rule of lis pendens' within the meaning of Section 52 of the Transfer of Property Act". Regarding lis pendens he held that the purchases under both Ex. B7 and Ex. B51 were affected by the rule of lis pendens. <ORG> passed a preliminary decree for partition of B Schedule properties (items 2 to 31) into six equal shares. It protected the interest of the 12th defendant by stating that "as far as possible the Commissioner to be appointed in the suit for division of the properties will allot to the plaintiff's share such of the properties which are not covered by Exs. B 7 and B 51.

40. The District Judge confirmed the decree. Before <ORG>, in appeal by defendant No. 12, the only point considered was that of lis pendens. <ORG> held that Ex. B7 was a case of voluntary alienation and was hit by lis. pendens, as the sale was not in execution of a mortgage decree. Regarding Ex. B51 <ORG>, relying on <CITATION> A.I.R. 1939 Mad. 256 held that Ex. B51 would not be affected by lis pendens, as the loans were granted under the Land Improvement Loans Act to the extent that the loans were taken for the improvement of the properties. As it had not been considered whether all the properties which were sold in revenue sale and conveyed under Ex. B51 were lands for the improvement of which loans were taken, <ORG> directed :

In the final decree proceedings, the trial court were to consider what were the properties for the improvement of which the loans under the Land Improvement Loans Act were taken by the first defendant, in respect of those properties alone the doctrine of lis pendens will not apply. In respect of other properties, the doctrine of lis pendens will apply. The trial court take evidence for the purpose of deciding the properties in respect of which the loans under the Land Improvement Loans Act were taken.

With this modification <ORG> dismissed the appeal.

41. Defendant No. 12 applied for a certified copy of the Judgment and Decree on July 22, 1968, and these were made ready on August 9, 1968 and delivered on August 12, 1968. Defendant No. 12 moved <ORG> by letter dated August 22, 1968 "requesting the posting of the appeal for being mentioned for the purpose of the issue of the Certificate for leave to appeal under the Letter Patent". The learned Judge who heard the appeal by his order dated September 6, 1968 refused the leave on the ground that the leave was not asked for immediately on delivery of judgment and that it could not be asked for afterwards.

42. Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side, 1965 under which the leave asked for was refused reads :

28. When an appeal against an appellate decree or order has been heard and disposed of by a single judge, any application for a certificate that the case is a fit one for further appeal under clause 15 of the Letters Patent shall be made orally and immediately after the judgment has been delivered.

43. This <ORG> granted special leave.

44.At the outset, Mr. <NAME> raised the preliminary objection that the appeal was incompetent as Defendant No. 12 failed to ask for certificate orally and immediately after the judgment was delivered. The learned Counsel for Defendant No, 12 urged that Rule 28 of Order 4 was ultra vires. Two points thus arise out of the contentions of the parties :

(1) Is Rule 28 of Order 4 of the Rules of the High Court of Madras Appellate Side ultra vires ?

(2) Are the Sales by Ex. B7 and Ex. B51 hit by the rule of lis pendens ?

45. Clause 15 of the Letters Patent inter alia provides for an appeal to <ORG> from a judgment of one judge made in exercise of the appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a court subject to its superintendence, where the Judge who passed the judgment declares that the case is a fit one for appeal. Clause 37 of the Letters Patent confers powers on the- High <ORG> to make rules and orders for the purpose of regulating all proceedings in civil cases. This <ORG> held in <CITATION> that under Clause. 27 of the Letters Patent which is in similar terms as Clause 37 mentioned above, <ORG> of Judicature at Lahore had the power to make a rule prescribing the period of limitation in respect of appeals from Orders made by that <ORG> in exercise of its original jurisdiction to <ORG> of that <ORG>. It seems to me that <ORG> can equally frame a rule regulating the time at which and the manner in which the application for a certificate shall be made. Rule 28 of Order 4 does not take away any right conferred by Clause 15 of the Letters Patent. It only regulates the manner of the exercise of that right. It was said that the rule unduly restricts the right of the litigant to peruse the judgment and make up his mind whether to appeal or not. But if the declaration is made immediately by the Judge that the case is fit one for appeal there is nothing, to prevent the litigant from not filing the appeal if he considers it inadvisable to do so.

46. I need not discuss the point whether the Judge will have the right to condone a breach of the Rule because no application seems to have been made to condone the breach of the Rule. But this conclusion does not render the appeal before us incompetent. Leave was given by this Court after hearing the respondents, on October 14, 1968. On April 22, 1969 the respondents obtained an order from this Court for expediting the hearing. No application was made at that stage to raise the point of incompetency of appeal. In the circumstances I consider that the appeal should be disposed of on merits.

47. Coming to the second point, this Court has considered the scope of Section 52 of the Transfer of Property Act and the rule of lis pendens in a number of cases. There is no difficulty in holding that Ex. B7 falls within the provisions of Section 52 of the Transfer of Property Act. But Ex. B51 stands in a different position. It was held in <CITATION> , 28 that the principle of lis pendens applies even to involuntary alienations like court sales. <NAME> observed :

The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that . since the result must bind the party to it so must it bind the person deriving his right, title and interest from or through him. This principle is well illustrated in <NAME> the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales. But it is well-established that the principle of lis pendens applies to such alienations. [See Nilkant v. Suresh Chandra 12 I.A. 171 and Motilal v Karrabuldin (24 I.A. 170).]

48. These observations were referred to with approval by this Court in <CITATION> . If the principle of lis pendens applies to court auctions there is no reason why it should not apply to revenue sales. But the effect of the application of the principle may vary according to the nature of the pro visions under Which the revenue sale is held. The principle of lis pendens does not affect pre-existing rights. If there is a valid charge or mortgage on a property, this does not vanish because the property becomes the subject-matter of a partition suit. In this case according to defendant No. 12 a valid charge subsisted on the lands by virtue of the provisions of the Land Improvement Loans Act . Under Section 7 of the Land Improvement Loans Act loans are recoverable by the Collector in all or any of the following modes, namely :

(a) from the borrower as if they were arrears of land revenue due by him;

(b) ...

(c) out of the land for the benefit of which the loan has been granted as if they were arrears of land revenue due in respect of that land;

(d) ...

49. The proviso to Section 7 reads :

Provided that no proceeding in respect of any land under clause (c) shall affect any interest in that land which existed before the date of the order granting the loan, other than the interest of the borrower, and of mortgagees of, or persons having charges on, that interest, and where the loan is granted under Section 4 with the consent of another persons, the interest of that person, and of-mortgagees of, or persons having charges on, that interest.

50. Section 42 of the Madras Revenue Recovery Act provides that all lands brought to sale on account of arrears of revenue shall be sold free of all encumbrances. The liability of the land to be sold under Section 7(c) of the Act was a pre-existing charge and that subsisted as from the date of the loan. This was not affected by the institution of the suit for partition. This charge could be enforced by the <ORG> notwithstanding the pendency of the partition suit. No decree in the Partition suit could have effaced the charge. Therefore, if the <ORG> has sold only the property in respect of which loan was taken, the purchaser-defendant No. 12-is not prejudiced by the principle of lis pendens. Therefore, the direction of <ORG> was right insofar as it directed <ORG> to separate the properties for the improvement of which the loans under the Land Improvement Loans Act were taken, from the other properties.

51. In the result the appeal fails and is dismissed.


REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 181 OF 2001 <NAME> ...Appellant Versus <NAME> and Ors. ...Respondents WITH CRIMINAL APPEAL NO.182 OF 2001 JUDGMENT

Dr. <NAME>, J.

1. Challenge in these appeals is to the judgment of <ORG> of <ORG> accepting the appeal filed by the respondents who were found guilty of offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the ` IPC '). <ORG> held that if on taking overall view of the case right of self defence is made out or looks probable from the evidence on record, that right should not be construed narrowly because the right of self defence is a very valuable right and it has a social purpose.

2. Background facts as projected by prosecution in a nutshell are as follows:

The incident occurred on 12.7.1978 at about 5.30 a.m. The respondents 1 and 2 are brothers and sons of <NAME>. On the aforesaid date and time the accused respondents armed with knife and lathi respectively arrived at the `Gotha' of <NAME> (hereinafter referred to as the `deceased') and accused <NAME> started beating the deceased with lathi and also asked his brother <NAME> to kill him, whereupon <NAME> assaulted the deceased with knife. On hearing the cries of deceased, his brother <NAME> (PW-1) who was washing his hands at the Hand Pump installed in the east of `Gotha' of <NAME>, rushed to the scene of occurrence. The cries also attracted <NAME> (P.W.2), <NAME> (P.W.4), <NAME> and <NAME>. <NAME> tried to rescue the deceased but he too was assaulted by <NAME> with knife. Deceased fell down on the ground. The witnesses succeeded in apprehending <NAME> along with the knife with which he had assaulted the deceased and <NAME>. However, accused <NAME> succeeded in making good his escape. Thereafter <NAME> and other witnesses proceeded to Police Station Kotwali along with <NAME> and accused <NAME> on tractor trolley of <NAME>. Before they could reach police station, <NAME> died on the way. <NAME> (P.W.1) prepared F.I.R. (Ex. Ka. I) in his own handwriting and presented the same at Police Station Kotwali at 6.30 a.m. on the same day. <NAME> and blood stained knife, (Ex.1) recovered from him were handed over to police at the police station, in respect of which memo Ex. Ka. 2 were prepared by <NAME> (PW-6) who also prepared Check report and registered the case in general diary. <NAME> (PW-5) was present at the police station when the F.I.R. was lodged. He took up investigation and recorded the statement of first information at the police station. <NAME> conducted inquest on the dead body of <NAME>, which had been brought to the police station by first informant and others. The dead body was then sent for postmortem examination with constable <NAME> and <NAME>. After recording the statements of <NAME> and <NAME> (P.W.4), the Investigating Officer reached the place of occurrence along with first informant and witness <NAME>. He made inspection of the scene of occurrence and prepared site plan Ex. Ka.13. The place where blood was found has been shown by letter `A' in the site plan. <NAME> was arrested on the same day. Injured <NAME> was, however, interrogated on 13.7.1978 and after completing the investigation charge sheet Ex. Ka 15 was submitted against both the accused persons. Dr. <NAME> conducted autopsy on the dead body of <NAME> on 12-7-78 at 12 noon and following ante mortem injuries were found.

1. Incised wound 2" 1/4" x skin deep on right side forehead 1" above the right eye brow and 1-1/2" away from right ear margins clean cut, gaping present, blood clots present and wound was horizontally placed.

2. Incised wound l" x 1/4" x muscle deep on middle of left arm margins clean gaping present, blood clots present.

3. Punctured wound 1-1/4'' x 1/2" x chest cavity deep on right side chest 1" outer to mid line chest and 4" away and above to right nipple, lying vertically, margins clean cut gaping present, blood clots present.

In the internal examination <NAME> was found congested and cut underneath injury No.3, Right lung had also a cut Mark 3/4" x 1/2" pulmonary vessels had also been cut. The chest cavity contained fresh blood about 520 ml. Stomach was empty while large intestines contained gases and faecal matter. In the opinion of the doctor death was due to shock and hemorrhage as a result of ante mortem injuries. The postmortem report is Ex.Ka.4.

The motive for assaulting <NAME> as alleged in the first information report was that on 10-7-78 <NAME> had made an attempt to have carnal intercourse with <NAME>, son of deceased and <NAME> told this fact to his father. Deceased accosted accused <NAME> whereupon the latter threatened him with dire consequences.

Since the accused persons pleaded innocence, trial was held. In order to substantiate the accusations six witnesses were produced. <NAME> (PW-1) is the first informant and younger brother of the deceased. <NAME> (PW-2) is an eye witness. It is to be noted that PW-1 was the injured witness. The accused persons took the stand that on the date of occurrence accused <NAME> went to throw cow dung in the field in the morning and he was assaulted by <NAME> with lathi. On hearing his cries his younger brother <NAME> came there with spear in his hand to save <NAME>. He assaulted the deceased.

As noted above, <ORG> found the evidence of eye witnesses to be credible, cogent and recorded conviction. In appeal, <ORG> found substance in the plea of exercise of right of private defence and directed acquittal.

Criminal Appeal No.181 of 2001 has been filed by the complainant while State of U.P. has filed other Criminal Appeal No.182 of 2001.

3. In support of the appeals, learned counsel for the appellants submitted that <ORG> has acted on surmises and conjectures and has accepted the plea of exercise of right of private defence. <ORG> conclusion as regards non-mention in the FIR that the witness managed to evade the lathi blow or about the injury on the accused are legally untenable. <ORG> has not examined the question as to whether the right of private defence as claimed to have been exercised has been exceeded. It was pointed out that the witness stated about the assault by lathi but in the instant case the deceased does not appear to have received any lathi blow. Since lathi was found at the spot as claimed the defence version, <ORG> probabilised that deceased had made an assault on accused <NAME> by lathi. The genesis and origin of the occurrence has been suppressed and true facts have not been presented. <ORG>, it is submitted, accepted the plea of right of private defence but without any material to substantiate the plea, <ORG> came to an abrupt conclusion that the right has been exercised and the accused persons were acting in self defence. <ORG> also came to a conclusion that the injuries on accused <NAME> were not satisfactorily explained. It was pointed out that those injuries were superficial in nature. To similar effect is the stand taken by the <ORG>.

4. Learned counsel for the accused respondents submitted that in the case of acquittal if two views are possible, the view in favour of the accused has to be accepted. <ORG> on analyzing the evidence came to a conclusion that the accused persons were exercising the right of private defence.

5. Only question which needs to be considered is the alleged exercise of right of private defence. Section 96 , IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression `right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the <ORG> must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the <ORG> to consider such a plea. In a given case the <ORG> can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short `the Evidence Act '), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the <ORG> to presume the truth of the plea of self-defence. The <ORG> shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the <ORG> that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. ( <CITATION> (AIR 1968 SC 702), <CITATION> (AIR 1975 SC 1478), <CITATION> (AIR 1977 SC 2226), and <CITATION> (AIR 1979 SC

577). Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97 , that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft quoted observation of this <ORG> in <CITATION> . (AIR 1979 SC 391), runs as follows:

"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."

The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.

6. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99 . To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 , IPC define the limit and extent of right of private defence.

7. Sections 102 and 105 , IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In <NAME> v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.

8. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was expressed by this Court in <CITATION> (AIR 1975 SC 87). (See: <CITATION> , <NAME> alias <CITATION> represented by Inspector of Police, T.N. (2002 (8) SCC 354).

9. As noted in <CITATION> (AIR 1991 SC 1316), a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The <ORG> dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.

10. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. ( <CITATION> . (AIR 1971 SC 1857). Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this <ORG>, to adopt tests by detached objectivity which would be so natural in a <ORG> room, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.

11. In the illuminating words of <NAME> (<NAME> on Crime, 11th Edition Volume I at page 49):

"....a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable."

12. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC , available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.

13. The above position was highlighted in <CITATION> (2005 (10) SCC 358).

14. In the instant case <ORG> held that the lathi injuries were there but came to erroneous conclusion that the injuries appear to have been inflicted in a different manner. <ORG> also came to a conclusion that if the spear was used blunt injury could not have been caused.

15. Unfortunately, <ORG> overlooked that the categorical finding recorded by the trial Court was that one side of the weapon was blunt and other side was sharp and one blunt injury was explained. <ORG> appears to have wrongly interpreted the opinion of the doctor. The genesis according to <ORG> has not been established. If that be so, there was no question of exercise of right of private defence. <ORG>'s conclusion as regards shifting the onus on the prosecution is also without any legal foundation. It is to be noted that nothing was found in the field as was pleaded by the defence to substantiate the right of private defence. The FIR was promptly lodged. The doctor had opined that the injury was possible with knife but <ORG> without any discussion held otherwise. So far as the alleged non-explanation of injuries on the accused aspect is concerned, <ORG> clearly overlooked the relevant materials. From the evidence it is clear that after the accused persons assaulted the deceased and the injured witnesses they were beaten by the villagers. In the FIR also there is mention about the beating given by villagers. <ORG> held that the details of the assaults were not given in the FIR. In this context, the view expressed by this Court in <CITATION> (2004 (12) SCC 269) needs to be noted. In paras 7 and 8 it was observed as follows:

"7. Coming to the question whether on the basis of a solitary evidence conviction can be maintained. A bare reference of Section 134 of the Indian Evidence Act, 1872 (in short `the Evidence Act ') would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of single witness if he is wholly reliable.

Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the <ORG> is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained. Undisputedly, there were injuries found on the body of the accused persons on medical evidence. That per se cannot be a ground to totally discard the prosecution version. This is a factor which has to be weighed along with other materials to see whether the prosecution version is reliable, cogent and trustworthy. When the case of the prosecution is supported by an eyewitness who is found to be truthful, as well, mere non-explanation of the injuries on the accused persons cannot be a foundation for discarding the prosecution version.

Additionally, the dying declaration was found to be acceptable.

8. Other plea emphasized related to alleged exercise of right of private defence. Merely because there was a quarrel and two accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary. No evidence much less cogent and credible was adduced in this regard. The right of private defence as claimed by the accused persons have been rightly discarded."

16. So far as non-explanation of superficial injuries on the accused persons is concerned, in <CITATION> . (2004 (13) SCC 257), it was held as follows:

"Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this <ORG> in <CITATION> (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In <NAME> and <NAME>. v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the <ORG> in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of prosecution case. ( <CITATION> (2003) 8 Supreme 476)."

17. The basic question which was to be considered by <ORG> was that even if the right of private defence was exercised, whether that was exceeded. In the instant case, the evidence clearly shows that though there may be at some point of time the exercise of right of private defence by the respondents existed, the same has been exceeded. The respondents are therefore convicted of offence punishable under Section 304 Part I . Custodial sentence of 8 years would meet the ends of justice. The appeals are allowed to the aforesaid extent. The respondents who are on bail shall surrender to custody forthwith to serve the remainder of sentence.

................................<NAME>

(Dr. <NAME>) .................................J.

(P. SATHASIVAM) .................................J.

(<ORG> ALAM) New Delhi, August 22, 2008