Bahadur, J.:— This is an appeal under Section 116-A of the Representation of the People Act, 1951, (hereinafter to be referred to as the Act) by Yugal Kishore Sinha, who was the petitioner before the Election Tribunal Darbhanga, and had asked it to declare the election of the respondent, Nagendra Prasad Yadav, to the Lok Sabha from the 12th Sitamarhi Parliamentary constituency as void.

2. Besides the appellant and the respondent there were five other candidates, who had filed nomination papers to fill the said seat and the respondent was declared elected from the above mentioned constituency on the 1st March, 1962. The appellant thereafter submitted a petition before the Election Tribunal challenging the election of the respondent on two grounds. The first ground was that the respondent held benami in the name of his wife Smt. Vidyabati Debi a stage carriage permit No. 190/60 under the North Bihar Regional Transport Authority for plying a bus on Muzaffarpur-Sitamarhi-Sursand route. It was said that this was “an office of profit” under the State Government and since the respondent was the real holder of the said office he was disqualified to be a member of the Lok Sabha under Article 102(1)(a) of the Constitution of India. The second ground was that as the respondent was the real permit holder, he was, according to the terms of the contract embodied in the said permit, to carry mail for the Union Government and as such was also disqualified to be a member of the Lok Sabha under Section 7(d) of the Act. On these grounds the appellant prayed that the election of the respondent be declared void. The respondent denied that he held an “office of profit” under the State of Bihar or that he was disqualified to be a member of the Lok Sabha under Section 7(d) of the Act.

3. The Tribunal rejected the contentions of the appellant and accordingly dismissed his petition. It is against this order of the Tribunal that the present appeal has been filed by the appellant.

4. Mr. Ranen Roy who has appeared to the appellant, has pressed these two contentions before us as regards the first contention, he has urged that the Tribunal was in error to holding that the real owner of the bus business was Smt. Vidyabati Debi, wife of the respondent. He has submitted two points which arise for consideration though they overlap each other. They are (i) whether the respondent was the real permit holder and owner of the bus and his wife Vidyabati Debi was merely a name lender and (ii) whether the respondent was actually running the bus business on behalf of his wife.

5. Learned counsel frankly conceded that the approach of the Tribunal on the question of onus was correct in that, the ostensible owner must be taken to be the real owner until contrary is proved and that there is no presumption in law that with stands in the name of the wife belongs to the husband. He, however, urged that the appellant had satisfactorily discharged the said onus and the Tribunal had failed to appreciate the evidence on the record it will, therefore, be convenient to deal with the points in the order that he has raised them.

6. The Tribunal found that the permit (Ext. 8.a) was applied for by Vidyabati Debi, wife of the respondent, and it was issued in her name vide Ext. 4. The agreement relating to the purchase of the bus on hire purchase system (Ext. 9), the receipts showing payments of the instalments, (Ext. 19 series), the challans showing deposit of permit fees (Exts. 6 series) and all the material documents relating to the transaction are in the name of the wife of the respondent. Learned counsel submitted that the motive for the benami transaction was that the respondent had applied for a Congress ticket for the election to the Legislative Assembly in 1952 as well as in 1957 though he failed to obtain the Congress ticket on those two occasions. The respondent has not denied this fact. The application for the bus permit (Ext. 8.a) was made in September, 1658. It was suggested on behalf of the appellant that since the respondent was anxious to be elected as a member of the Bihar State Legislative Assembly from 1952 he must have taken the precaution to take the permit in the name of his wife in order to avoid the risk of being disqualified for election to the assembly in case he was able to obtain a Congress ticket in future it is not possible to hold that the motive suggested by the appellant would be sufficient to Justify the inference that the bus business was in the benami of his wife. It would thus be necessary to examine the evidence on the point of the source from which the capital of the bus business was derived and the various other circumstances attaching to it (After considering the evidence (Paras 7 to 12) his Lordship proceeded:)

7. For the reasons stated above I must hold that the Tribunal came to the right conclusion that the capital for the business was supplied by Vidyabati herself and not by her husband the respondent.

8. The next point urged on behalf of the appellant was the manner in which the permit for running a bus was obtained which showed that it was obtained by the respondent himself in benami of his wife. In this connection it was submitted that the respondent was forging the signature of his wife, inasmuch as the signature “Bidyu Bati Debi” (Ext. 8) appearing in the application for permit (Ext. 8.a) was in the pen of the respondent. The evidence on this point consists of P.Ws 8, 11 and 13 Rabindra Tiwary (P.W 8) claimed to know the hand-writing of the respondent both in English and Hindi. He admitted in his cross-examination that he did not know the signature of Vidyabati and it was only by guess that he stated that the signature (Ext. 8) was not in her pen. He admitted that the signature in question was not made in his presence. Mukti Nath Jha (PW 11), a pleaders clerk, stated that the signature of Vidyabati on the application to the Transport Authority was in the pen of the respondent. He however, admitted in cross-examination that he could not identify the signature of Vidyabati as also the date under it. He stated that the contents of the said application were in the handwriting of the respondent Similarly. Ramji Jha (PW 13) stated that Ext. 11 was in the pen of the respondent in cross-examination he also admitted that he never had any correspondence with the respondent nor did the latter ever execute any document in his presence. He further admitted that he did not know the hand-writing of Vidyabati Having perused and considered the evidence of these three witnesses I am of the view that no reliance can be placed on their evidence.

9. Learned counsel drew our attention to the pleader Commissioner's note dated the 6th February, 1963, appearing at page 186 of the paper book to show that Vidyabati was asked by the appellant's lawyer to sign her deposition both in English and Hindi at the conclusion of her evidence before the pleader commissioner. It appears that she signed it only in Hindi. The order of the pleader commissioner has been supplied to us in course of the hearing of the appeal. The pleader commissioner for the reasons given by him refused to recall Vidyabati, who had already left for her home in Sitamarhi Sub-division and accordingly rejected the prayer I am unable to draw any inference from Vidyabati's refusal to sign in English it was further urged that Vidyabati's signatures on Exts. 12 and 13, receipt dated the 10th May, 1960, granted to Dhingra for the sale of the bus to her and the information conveyed to the Superintendent of Police on the date of the said sale, were different from the signature on Ext. 8.a. It was also submitted that the Challans (Ext. 6 series) showing the deposit of various fees and taxes under the Motor Vehicles Act bore the name of ‘Nagendra Prasad’ and only one had the name of Vidyabati it was, therefore, urged that there could be no doubt that the application (Ext. 8.a) was not signed by Vidyabati and that the name on the challan showed the name of the real owner in my opinion, the appellant has failed to establish that the signatures of Vidyabati were not her signatures. As for or the names on the challans they were filled in by persons who tender the money and such persons are usually clerks or other persons looking after the affairs of those persons on whose behalf the money is paid Besides the column showing the person on whose behalf the money has to be paid has been correctly filled in and in each rasp it is Vidyabati's name.

10. The next point raised by learned counsel was that purchase by a husband in his wife's name would be presumed to be benami Reliance was placed on the decision of Mt. Bilas Kunwar v. Desrai ??? Singh, AIR 1915 PC 96 in support of his submissions. In my opinion, the principle decided in this case has no application to the facts of the present case. In that case a person purchased a bungalow in the name of his mistress but allowed his wife to stay therein. The mistress never lived in the bungalow, which was all along in the wife's possession. It was held by the Privy Council that the purchase was benami and the mistress had no title thereto. Their Lordships relied on the observations of Lord Campbell in Dhurm Dass Pandey v. Mt. Shama Soondery Debiah, 3 Moo Ind App 229 (PC) which run as follows:—

“The criterion in these cases in India is to consider from what source the money comes with which the purchase money is paid”

11. There is now a considerable body of authority that there is no presumption in Hindu Law that transactions standing in the name of a wife are the husband's transactions and the onus lies on the other side to make out that the transaction was benami See for instance Manada Sundari Debi v. Mahananda Sarnakar, 2 Cal WN 367, Bengal Coal Co. Ltd. v. Sita Ram Chatterjee AIR 1935 Cal 666, Girija Kumari v. Kiran Chandra Bakshi AIR 1947 Pat 471 and Hari Ram v. Kundan Lal, AIR 1932 Lah 198 (1). It is also now well settled that the determination of the question must depend net merely upon the direct oral evidence but on amongst others, the circumstances such as the source of the purchase money it was urged on behalf of the appellant that the question of onus was merely academic in this case and reliance was placed on two decisions of the Privy Council in F.I.R Kerwick v. K.M Kerwick 47 Ind App 275 : (AIR 1921 PC 58) and in Chidambara Sivaprakasa Pandara Sannadhigal v. Veerama Reddi, 49 Ind App 256 : (AIR 1922 PC 292).

12. Before I allude to the other ground of attack I must refer to one more point raised on behalf of the appellant on the question of benami. It was submitted, as was also submitted before the Tribunal, that the respondent had been making oral assertions at various places and occasions that the bus business was his. In this connection our attention was drawn to paragraph 14 of the judgment of the Tribunal and the same comments were made in this Court also. I am in agreement with the finding of the Tribunal that there is no reliable evidence on the record to show that the respondent ever asserted the bus business to be his it is also against probability that even if the respondent was running the bus business in the name of his wife in order to avoid any possible risk of being disqualified in the election, he would be openly giving out that he was the real owner of the bus.

13. In this connection it was contended on behalf of the appellant that the evidence of the Manager of the bus business Shama Saran (RW 17) to the effect that he looked after the bus business on behalf of Vidyabati could not be accepted Nothing has been shewn to cast any doubt on his testimony and I have no hesitation in accepting his evidence. It was further urged that the evidence of the Enforcement Officer. (PW 2) showed that the respondent was the real owner of the bus. I am not prepared to accept this argument for the simple reason that the evidence of the Enforcement Officer (P.W 2) and the Magistrate (P.W 1) only showed that the respondent merely spoke about the buses in general and not about any particular bus at the time of magisterial checking. Further there could be nothing wrong for the respondent to take interest in the matter of the bus business on behalf of his wife, who was the owner of the bus on a careful consideration of the facts and circumstances of this case I am of the view that the appellant failed to establish that the respondent was the real holder of the permit or that he was running the bus business in the benami of his wife I am satisfied that the capital of the business was derived from Vidyabati and the respondent did nothing more than what was normally expected from a husband in the management of his wife's business.

14. I shall now deal with the second ground. The way in which learned counsel for the appellant put his case is this. He submitted that if the respondent was the permit-holder of the bus he would be disqualified to be a candidate?or the election to the Lok Sabha within the meaning of Article 102(1)(a) of the Constitution and Section 7(d) of the Act.

15. Article 102(1)(a) of the Constitution of India reads as follows:—

“(1) A person shall be disqualified for being chosen as and for being, a member of either House of Parliament—

(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder

16. Section 7(d) of the Act, which was substituted by Act 58 of 1958 reads as follows:

“A person shall be disqualified to being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State—

(d) if there subsists a contract entered into in the course of his trade or business by him with the appropriate Government for the supply of goods to, or for the execution of any works undertaken by, that Government”

17. Before that this section read thus:—

(d) if, whether by himself or by any person or body of person in trust for him or for his benefit or on his account, he has any share or interest in a contract for the supply of goods to, or for the execution of works or the performance of any service undertaken by the appropriate Government”.

18. The contention raised on behalf of the appellant is that in the present case an election to the Lok Sabha is in question and the “appropriate Government” is the Government of India of the Union Government and one of the terms contained in the bus permit is for carrying of mail bags and this being the Union Government undertaking fee provisions of Section 7(d) of the Act were clearly attracted. Learned counsel for the respondent, on the other hand, contended that under the existing provision, which is applicable to the present case, no disqualification was incurred. He further submitted that the position might have been different before the substitution of the provision of Section 7(d) of the Act in 1958. The argument of learned counsel for the appellant doe; not seem to be correct. He relied on the decision of N. Satyanathan v. K. Subramanayan, (S) AIR 1955 SC 459. This case does not support the contention put forward on behalf of the appellant as it was a decision under the old clause before the amendment but the words “performance of any service” have now been omitted in the existing clause (d) of Section 7 of the Act it was further contended that under the existing provision a person would be disqualified if he has a subsisting contract for supply of goods to, or for the execution of works undertaken by, the appropriate Gov eminent. It was urged that a permit to ply a bus was a contract for supply of goods and was clearly “a contract for supply of goods or for the execution of works” The argument is attractive but this carries us hardly any distance at all. The word “works” in sub-section (d) connotes something to be built or constructed and not something to be done See the case In re: T. Siddalingaiya. 7 Ele. LR 416.

19. A large number of decisions were cited of the Bar by both sides but it is unnecessary to pile up authorities. The nearest decision on the facts of the present case is of Satya Prakash v. Bashir Ahmad Qureshi, AIR 1963 Madh Pra 318 where the amended Section 7(d) of the Act was under consideration. In that case an objection was raised that the respondent's nomination for election to the House of People (Lok Sabha) was not valid because he was a share-holder in a Transport Company which had entered into a contract with the Central Government to carry postal mail bags and articles on the remuneration mentioned in the contract and was thus disqualified for membership of Parliament under Section 7(d) of the Act. Their Lordships held that a contract by which a person only undertakes the transport of postal articles and mail bags could not be said to be a contract for the supply of goods. The expression supply of goods' implies furnishing something that is wanted and hence when a carrier is asked to collect and transport postal articles and mail bags from the place and to deliver them to persons entitled to receive them, the carrier is not fulfilling any want of the sender or the receiver in respect of the goads collected, carried and delivered; in such a case the supply of goods if at all any may be by the send to the receiver but certainly not by the transport agency Further their Lordships held that such a contract was not even a contract in execution of any works undertaken by the Government concerned as contemplated by Section 7(d). The use of the plural word “works” indicates that what was contemplated by the section was the carrying out of something to be built or constructed and not merely something to be done, which a contract of transport of postal articles and mail bags undoubtedly was. Their Lordships distinguished the decisions reported in (S) AIR 1955 SC 459, Ram Padarath Mahto v. Mishri Sinha, AIR 1961 SC 480 and State Of Madras v. Gannon Dunkerley & Co., (Madras) Ltd, AIR 1958 SC 560. In the same case their Lordships further held that for the operation of the disqualification of the holding of an office of profit under the Government the essential requirement was that the candidate himself must hold the office. In my judgment, the aforesaid Madhya Pradesh decision clearly lays down the true legal position it is, therefore, unnecessary to deal with the contentions raised on behalf of the appellant that carrying of mails was a contract and as such the respondent was disqualified within the meaning of Section 7(d) of the Act.

20. Learned counsel toi the appellant then put his case in another way. He submitted that operating of a bus service under a permit granted by the Government could be taken to be holding an ‘office of profit’ under the Government A number of decisions were referred to show that the word office was capable of various meanings and was very wide in its connotation. Reliance was placed on the case of Ramnarain v. Ramchandra, AIR 1958 Bom 325 and another decision of the Supreme Court in the case of Guru Govinda Basu v. Shankari Prasad Ghosal, published in the Gazette of India. D/- 14-9-1903 Part II, Section 3, sub-section (1) at page 3082 (reported in AIR 1904 SC 254) In the Bombay case the question arising and decided was that the salary paid to the member made the office of the member of the Legislative Council as an office of profit. But it was not an office of profit under the Government and therefore that case is no authority for the proposition that any office of profit is equivalent to in office of profit under the Government in the other case decided by the Supreme Court the question was whether a person, who was a chartered accountant and a partner of the firm of auditors was holder of offices of profit under the Government it was not disputed that the appellant of that case was an auditor of various Companies, such as, the Durgapur Projects Ltd. and the Hindustan Steel Ltd. which were Government undertakings. The Supreme Court accordingly held that the appellant was an auditor of the Government Companies and as such held office of profit under the Government of India within the meaning of Article 102(1)(a) of the Constitution. This case is clearly distinguishable from the present case. In the above case the Supreme Court refined to the decision in the case of Abdul Sakur v. Rikhab Chand, 1958 SCR 387 : (AIR 1958 SC 52) and observed that the factors, which were held to be derisive, were (a) the power of the Government to appoint a person to an office of profit or to continue him in that office or to revoke his appointment at their discretion, and (b) payment from out of Government revenues, though it was pointed out that payment from a source other than the Government revenues was not always a decisive factor in the present case, none of the two criteria can be said to apply it has not been proved that the respondent held an office ‘under the Government’ It is obvious that the ‘element of profit’ is not enough by itself in other words, it must first be proved that what was held was an office’ I am of the view that a person, who holds a permit to ply a bus can by no means be said to be the holder of an office under the Government. As I have already said, the case decided by the Madhya Pradesh High Court which is the nearest to the point on the facts of this case, would seem to conclude the matter.

21. It was in my opinion, rightly contended on behalf of the respondent that one of the essential characteristics of an ‘office’ under the Government cannot be in benami, as a permit for plying a bus could be held in benami but the holder or such permit could not be said to hold an office under the Government. There were several comments made by learned counsel or the appellant on this aspect by placing before us various sections of the Motor Vehicles Act in order to show that the Regional Transport Authority was an authority created by the Government to perform certain duties under the supervision of the Government and an appeal lay departmentally against the Transport Authority's orders to the Minister. It was, therefore, contended that what was done by the Transport Authority was under the control of the Government and as such was in the same position as the Government controlled Companies, which were the subject-matter of consideration in the aforesaid Supreme Court case published in the Gazette of India I am not prepared to accept this argument as correct for the simple reason, as I have stated earlier, that in the Supreme Court case it was not in controversy that the two companies were Government controlled companies within the meaning of the Indian Companies Act. In the present case, on the authorities referred to above it is not enough that a person, who holds an ‘office of profit’ must necessarily also be said to hold an ‘office of profit’ under the Government, in the present case bus permit has been issued by the Transport Authority which is a statutory body consisting of both official and nonofficial members appointed under the Motor Vehicles Act. The point appears to be concluded by the decision of the Supreme Court referred to earlier in Abdur Sakur's case, 1938 SCR 387 : (AIR 1958 SC 52).

22. For the reasons stated above, in my judgment, the respondent was not the real or ostensible permit holder of the bus nor a real or ostensible owner of the bus business. He was, therefore, not a person holding an ‘office of profit’ under the Government at the time of his election. In such circumstances the provisions of Section 7(d) of the Act or Article 102(1)(a) of the Constitution are not attracted to the facts of this case no other point was pressed before me.

23. In the result, the appeal fails and is accordingly dismissed with cost; hearing fee Rs. 250/-.

Misra, J.:— I agree.

HH/G.M.J

24. Appeal dismissed.